Cobb v. Florence City Board of Education

Filing 41

MEMORANDUM OPINION AND ORDER DISMISSING CASE that the defendant's motion for summary judgment is GRANTED and all claims are DISMISSED with prejudice and costs are taxed to plaintiff as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 9/18/2013. (AHI )

FILED
2013 Sep-18 AM 08:00
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
VINCENT EDWARD COBB,
Plaintiff,
vs.
FLORENCE CITY BOARD OF
EDUCATION,
Defendant.

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Civil Action No. CV-11-CLS4132-NE

MEMORANDUM OPINION AND ORDER
Plaintiff, Vincent Edward Cobb, brought this action on December 8, 2011,
asserting claims against his former employer, the Florence City Board of Education,
for: (1) sex discrimination, race discrimination, and retaliation pursuant to the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”); (2) sex
discrimination, race discrimination, and retaliation pursuant to 42 U.S.C. § 1981 and
the Fourteenth Amendment to the United States Constitution; (3) disability
discrimination pursuant to the Americans With Disabilities Act of 1990, 42 U.S.C. §
12101 et seq. (the “ADA”); (4) retaliation pursuant to the Family and Medical Leave
Act of 1993, 29 U.S.C. § 2601 et seq. (the “FMLA”); and (5) age discrimination
pursuant to the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et

seq. (the “ADEA”).1 The court later dismissed the ADEA, sex discrimination, and
race discrimination claims upon plaintiff’s motion.2 Thus, the only remaining claims
are: (1) the ADA claim; (2) the FMLA claim; (3) the retaliation claim under Title VII;
and (4) the retaliation claim under 42 U.S.C. §§ 1981 and 1983. Defendant has moved
for summary judgment on all of those claims.3 Upon consideration of the motion for
summary judgment, the briefs, and the evidentiary submissions, the court concludes
the motion should be granted, and summary judgment should be entered in
defendant’s favor on all of plaintiff’s claims.
I. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides that a 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). 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

1

See doc. no. 1 (Complaint).

2

See doc. no. 19 (Order Dismissing Fewer Than All Claims).

3

Doc. no. 20.
2

inferences in favor of the party opposing summary judgment.” Chapman v. AI
Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v. City of
Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the non-moving
party are not unqualified, however. “[A]n 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 Oaks Nursing Home, 692 F.2d 1321,
1324 (11th Cir. 1983) (alteration supplied). 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 (quoting Haves, 52 F.3d at 921) (emphasis and alteration
supplied). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)
(asking “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law”).
II. SUMMARY OF FACTS
A.

Plaintiff’s Educational Background and Non-Board Employment History
Plaintiff, Vincent Edward Cobb, received a Bachelor of Science degree in

Physical Education from the University of North Alabama in 1990 or 1991. He did
3

not attend graduate school or receive a teaching certification from the Alabama State
Department of Education.4 Instead, from 1987 to 2004, plaintiff worked for the
United Parcel Service (“UPS”) in various positions, including unloader, preloader, and
driver. Sometimes his job duties for UPS required him to clean a building.5 Plaintiff
also served in the United States Naval Reserves from 1986 to 1994, performing
clerical work and radio communications duties.6 From 1992 to 1993, plaintiff worked
for the City of Russellville, Alabama, Park and Recreation Department as the Director
of the “Chuckie Mullins Center.” There, he conducted recreational and extracurricular programs for at-risk youth in the community.7 In 2007, plaintiff started a
private lawn care business, providing services such as cutting grass, weed eating,
trimming shrubs, applying mulch, maintaining flower beds, pulling weeds, and
removing debris.8
B.

Plaintiff’s Employment With the Board
Plaintiff first became employed by the Florence City Board of Education (“the

Board”) during the summer of 2004 as a Special Needs Teaching Assistant at BurrellSlater Community Education Center, where the Board was conducting a summer
4

Defendant’s evidentiary submission, Exhibit A (Deposition of Vincent Edward Cobb), at 19.

5

Id. at 23-25.

6

Id. at 21-22; see also Cobb Deposition, at Exhibit 1 (Resume of Vincent E. Cobb).

7

Cobb Deposition, at 25-26; see also Cobb Resume.

8

Cobb Deposition, at 27-28.
4

program for special needs students. In that position, plaintiff’s primary duty was to
make sure the students had enough activities to keep them busy. He played games
with the students, took them outside to play, and assisted them with arts and crafts
projects.9
From the beginning of the 2004-2005 school year to January of 2005, plaintiff
transferred to Florence High School to assist a teacher with a special needs student
who had suffered a brain injury and sometimes exhibited behavioral problems. The
student was a large male who had injured a teacher in the past, so the Board wanted
to hire an adult male aide to work with the student. Plaintiff’s task was to keep the
student calm while the teacher presented classroom lessons in math, reading, and other
basic academic subjects.10
Between January and July of 2005, plaintiff worked at Weeden Elementary
School. One of his tasks was to assist four different kindergarten teachers with
reading instruction as part of the Alabama Reding Initiative program.11 He worked
one-on-one with students who were struggling with reading, as directed by the
classroom teacher.12 Plaintiff also worked with third- and fourth-grade special

9

Id. at 50-53.

10

Id. at 53-56.

11

Id. at 56-57, 63-66.

12

Id. at 63-65.
5

education students at Weeden, again assisting those students with subjects in which
they were struggling, as directed by the classroom teacher.13
At the beginning of the 2005-2006 school year, plaintiff began working as a
Campus Security Officer at the Florence Middle School/Freshman Center (“Freshman
Center”), a new school that housed seventh- through ninth-graders who had formerly
attended two rival schools. The Freshman Center already had a School Resource
Officer, who was a uniformed officer of the Florence Police Department assigned
solely to the school. Even so, the Board hired a Campus Security Officer at the
Freshman Center, as well as at the newly consolidated High School, to provide extra
security because fights were expected as a result of combining the two rival schools.
As Campus Security Officer, plaintiff assisted the School Resource Officer in
breaking up fights and escorting students to in-school suspension. He also patrolled
the campus, made sure students were reporting to class on time, prevented horseplay
in the hallways, maintained order in the cafeteria, made sure the buses left safely and
on time, and attended extra-curricular activities during school hours.14 He also helped
the cafeteria workers clean up the cafeteria.15
C.

Plaintiff’s Knee Injury

13

Id. at 65-66.

14

Cobb Deposition, at 66, 72-74.

15

Id. at 222-23.
6

In 1996, prior to plaintiff’s employment by the Board and while he was working
as a UPS driver, plaintiff tore the meniscus in his knee when he stepped out of his
delivery truck. The condition was treated with cortisone shots and an orthoscopic
procedure, and plaintiff continued to work. In 2002 or 2003, however, plaintiff
continued to experience problems with his knee, so he underwent a total knee
replacement procedure. He did not return to work for UPS after his surgery, but his
knee did improve, and he generally was able to do all the things he wanted to do. The
only subsequent knee problem plaintiff experienced was the development of scar
tissue, which was removed through another orthoscopic procedure in 2004.16
Plaintiff also underwent a third orthoscopic procedure in 2010, after he became
employed by the Board. He asked Rod Shepard, the Principal of the Freshman Center,
if he could use accrued sick leave for the procedure, and Shepard informed plaintiff
that would not be a problem.17 Plaintiff remained absent from work from February 22
to May 17, 2010, while recovering from the third orthoscopic procedure.18 While
plaintiff was out on leave, Sheppard told him that his presence at the school was
missed, and that Sheppard would be glad when plaintiff could return to work.

16

Id. at 37-41.

17

Id. at 45-46, 78-79.

18

Id. at 41-47, 77.
7

Sheppard did not use a “mean” or “malicious” tone when conveying that message.19
Plaintiff’s knee responded well to the third orthoscopic procedure, and he was
able to return to his job as Campus Security Officer from May 17, 2010 to May 28,
2010, the last day of school. Plaintiff also was able to resume his lawn care business
in May of 2010. At the time of his September 24, 2012 deposition, plaintiff still
maintained his lawn care business, and he also walked four miles approximately twice
a week for exercise. Plaintiff never requested any job accommodations from the
Board as a result of his knee problems, because he was able to perform the duties of
his job, except for when he was out of work recovering from surgery in 2010.20
D.

Termination of Plaintiff’s Employment by the Board
Faced with budget cuts at the end of the 2009-2010 school year, the Board

decided to eliminate the Security Officer positions at the Freshman Center and High
School because the security concerns that led to the creation of those positions no
longer were present.21 Plaintiff appealed the Board’s decision to eliminate his
position. He lost the appeal, but he was placed on administrative leave, and he
continued to be paid by the Board during the pendency of the appeal.22

19

Id. at 162-63.

20

Cobb Deposition, at 41-47, 77, 93-94.

21

Defendant’s evidentiary submission, Exhibit N (Affidavit of Dr. Kendy Behrends) ¶ 5.

22

Cobb Deposition, at 75-76, 84-87, 91.
8

Kendy Behrends, the Board’s Superintendent at the end of the 2009-2010
school year, found it “unfortunate” that plaintiff and Charles Johnson, the Security
Officer at the High School, had lost their positions for reasons completely unrelated
to their job performance, so she tried to assist both men in finding other employment
with the Board.23 Behrends asked the Freshman Center and High School principals
to tell plaintiff and Johnson that the Board still wanted them as employees, and that
they should watch for new job postings. She also asked that both plaintiff’s and
Johnson’s e-mail accounts be left open, so they could correspond about job
openings.24 Two positions in the Child Nutrition Program (“CNP”) at the Freshman
Center came open during the summer of 2010, and Behrends held both positions open
for plaintiff. She instructed the principal not to fill the positions until plaintiff had an
opportunity to apply. She also sent two e-mails to plaintiff inviting him to apply, and
she asked plaintiff’s Alabama Education Association (“AEA”) representative to
inform him of the openings. If plaintiff had applied for either of the CNP jobs,
Behrends intended to recommend that the Board hire him.25 However, plaintiff chose
not to apply for the CNP position because it paid less than he had earned as a Campus

23

Defendant’s evidentiary submission, Exhibit B (Deposition of Kendy Behrends), at 17-18.

24

Id. at 18-19.

25

Id.; see also defendant’s evidentiary submission, Exhibit I (Affidavit of Dr. Janet Womack),
Exhibit D (Transcript of September 2, 2010 administrative hearing), at 91-99.
9

Security Officer.26
E.

The Board’s Process for Making Hiring Decisions
When a job announcement is posted, current employees of the Board apply by

submitting a resume or letter of interest. Non-Board-employees apply online. The
principal of the school is responsible for identifying the best applicants for each
position. The principal generally will form a committee of people familiar with the
requirements of the position. The committee reviews the applications, selects
applicants to interview, and conducts the interviews. After the interviews, the
committee will inform the Superintendent which candidate it believes to be most
qualified. The Superintendent will then make a formal recommendation to the Board
to hire that candidate, unless the Superintendent disagrees with the committee’s
selection. The Superintendent’s recommendation usually has been accepted by the
Board. In fact, Dr. Womack testified that she could not recall any occasion on which
the Board disagreed with her recommendation for any position.27
F.

Timeline For Plaintiff’s Employment Applications and Complaints of
Discrimination
Plaintiff has complained that the Board wrongfully failed to hire him for the

following six positions:
26

Cobb Deposition, at 92.

27

Defendant’s evidentiary submission, Exhibit C (Deposition of Dr. Janet Womack), at 19-22, 3035.
10

a.

Special Education Teaching Asst., Florence Middle
School/Freshman Ctr., posted 5/11/10, filled by Charles Johnson
(filled after use of FMLA only)

b.

Custodian, Florence Middle School/Freshman Ctr., posted
5/25/11, filled by Dwight Perkins (filled after filing of EEOC
Charge and Amended Charge)

c.

Special Education Teaching Asst., Freshman Ctr., posted 8/1/11,
filled by Christopher Lanzenstiel (filled after filing of EEOC
Charge and Amended Charge)

d.

Custodian, Florence Middle School/Freshman Ctr., posted
1/1/17[sic], filled by Joey Franklin (filled after filing of EEOC
Charge, Amended Charge and Complaint)

e.

Custodian, Florence Middle School/Freshman Ctr., filled 5/18/12
by Coretha Perkins (filled after filing of EEOC Charge, Amended
Charge and Complaint)

f.

Custodian, Florence Middle School/Freshman Ctr., filed 5/18/12
by Howard Brummett (filled after filing of EEOC Charge,
Amended Charge and Complaint).28

1.

Special Education Teaching Assistant position at the Freshman
Center in May of 2010

Plaintiff applied for a position as a Special Education Assistant at the Freshman

28

Doc. no. 30, at 16 n.3. Plaintiff originally complained about his failure to receive additional
positions, but he subsequently narrowed his claims. See id. at 18 n.5 (“Plaintiff focuses his
complaints of retaliation and/or discrimination with respect to this Summary Judgment response on
the six positions in which Roderick Sheppard was a decision maker and which are listed in Footnote
3 . . . . Although Plaintiff believes that he was retaliated against by others at the Board’s main
office, given that he was never granted an interview after he filed his Charge of Discrimination, his
discovery did not reveal any information upon which he can rely to overcome summary judgment
other than with respect to positions for which Roderick Sheppard was a member of the interview
committee which made the recommendation of whom to hire to the Superintendent.”).
11

Center in May of 2010.29 Roderick Sheppard, the Principal at the Freshman Center,
formed an interview committee for that position, together with Marie Matlock, the
Assistant Principal at the Middle School. Dr. Behrends asked the committee to
strongly consider the applications of both plaintiff and Charles Johnson, the other
Security Officer whose position also had been eliminated.30
The Job Description for the Special Education Assistant position states the
minimum qualifications as being a high school diploma or its equivalent.31 The “Job
Goal” is to “help the teacher accomplish teaching objectives by working with
individual students or small groups to help them achieve the skill levels of the class
as a whole.”32 The Performance Responsibilities for the position include:
1.

29

Administers, scores and records such achievement and diagnostic
tests as the teacher recommends for individual students.

Cobb Deposition, at 97.

30

Cobb Deposition, at Exhibit 11; Behrends Deposition, at 41-42; defendant’s evidentiary
submission, Exhibit E (Deposition of Roderick Sheppard), at 34-35.
By way of background, what the court has been referring to as the “Freshman Center”
actually was comprised of both Florence Middle School and Florence Freshman Center — two
separate schools on a shared campus. Roderick Sheppard is the Principal at Florence Freshman
Center, and Aimee Rainey is the Principal at Florence Middle School. The two schools have shared
responsibility for the Child Nutrition Program, custodial services, School Resource Officers,
transportation services, and library/media services. Rainey primarily oversees the shared
transportation program, and Sheppard primarily oversees the shared custodial program. Womack
Affidavit ¶ 24.
31

Womack Deposition, at Exhibit 15 (Job Description). The copy of the job description in the
record states that is for a “Teacher Aide” position, but it appears undisputed that it is the same
position as “Special Education Assistant.”
32

Id. at 1.
12

2.

Works with individual students or small groups of students to
reinforce learning of material or skills initially introduced by the
teacher.

3.

Assists the teacher in devising special strategies for reinforcing
material or skills based on a sympathetic understanding of
individual students, their needs, interests and abilities.

4.

Operates and cares for equipment used in the classroom for
instructional purposes.

5.

Helps students master equipment of instructional materials.

6.

Distributes and collects workbooks, papers and other materials for
instruction.

7.

Guides independent study, enrichment work and remedial work
set up and assigned by the teacher.

8.

Assists with the supervision of students during emergency drills,
assemblies and field trips.

9.

Alerts the teacher to any problem or special information about an
individual student.

10.

Serves as the chief source of information and assistance to a
substitute teacher.

11.

Maintains the same high level of ethical behavior and
confidentiality of information about students as is expected of
fully licensed teachers.

12.

Participates in in-service training programs, as assigned.33

Plaintiff and Johnson both interviewed for the position, and the committee

33

Id.
13

recommended Johnson. Sheppard stated that Johnson was selected because he had a
good rapport with all students at the High School while serving as Security Officer,
because he was a demonstrated community leader, and because he had worked with
special needs children at the Alternative School.34 Even so, Johnson had never
actually served as a Teaching Assistant in special education.35 There also is no
evidence of Johnson ever taking medical leave or having any sort of disability while
employed by the Board.36
Additionally, Sheppard and Matlock had indicated to the selection committee
that, when plaintiff was employed at the Freshman Center, there were many occasions
on which they looked for him but could not find him, because he was not working
where he was supposed to be working.37 Plaintiff denies ever being absent from his
assigned work station “without permission or without having signed out in the
office.”38 He explained that the hand-held radio he carried to maintain contact with
school administrators had poor reception and did not always pick up the
administrators’ calls.39 He also stated that he did not always have a single assigned
34

Sheppard Deposition, at 40-46; defendant’s evidentiary submission, Exhibit G (Deposition of
Lynn Sharp), at 20-22.
35

Sheppard Deposition, at 40-41.

36

Id. at 42-43.

37

Id. at 26-28, 56-57, 78-80; Sharp Deposition, at 23.

38

Plaintiff’s evidentiary submission, Exhibit A (Declaration of Vincent E. Cobb) ¶ 4.

39

Id. ¶ 5.
14

work station, because he often was required to walk around the campus to ensure that
students were not skipping class.40 Plaintiff was never reprimanded or written up for
being away from his assigned work station, or for any other infraction.41 The only
occasion on which plaintiff could recall discussing an absence from campus with
Sheppard was when plaintiff had to leave campus to renew a license. Plaintiff
followed the appropriate procedure by signing out before he left campus. The renewal
process took longer than anticipated, so Sheppard called plaintiff to ask when he
would be able to return. Plaintiff informed Sheppard that he might need to take a halfday of vacation to cover the time he would be away. Sheppard did not indicate to
plaintiff that he disapproved of plaintiff’s absence that day.42
Based on the committee’s selection, Dr. Behrends recommended Johnson for
the Special Education Teaching Assistant position.

When she made that

recommendation, Dr. Behrends was unaware that plaintiff had any problems with his
knee, or that he taken leave for knee surgery. The Board approved Dr. Behrends’
recommendation, and it made the final decision to hire Johnson on June 3, 2010.43
2.

Plaintiff’s EEOC charges

40

Id. ¶ 6.

41

Id. ¶ 3.

42

Id. ¶ 7.

43

Behrends Affidavit ¶ 8.
15

Plaintiff filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”) on December 17, 2010.

He alleged

discrimination on the basis of race, color, sex, age, disability, and retaliation in the
termination of his employment, and in the Board’s failure to award four positions for
which he had submitted applications. Those positions included the Special Education
Teaching Assistant position from May of 2010, as well as three other positions that
are not at issue in this lawsuit.44 He filed an amended charge on May 3, 2011, alleging
that he failed to receive a position as Custodian at Weeden Elementary School in
January of 2011 as a result of retaliation and discrimination on the basis of race, color,
sex, age, and disability.45
3.

Custodian position at the Freshman Center in May of 2011

Plaintiff applied for a position as Custodian at the Freshman Center that was
posted on-line in May of 2011.46 The Board received thirty-three applications for that
position. Sheppard formed an interview committee and selected candidates to be

44

See Complaint, at Exhibit A (December 17, 2010 EEOC Charge). Even though plaintiff is not
specifically complaining of his failure to receive the three other positions as part of his claims in this
lawsuit, the fact that he filed an EEOC charge with regard to those positions is relevant to his later
claims of retaliation.

45

See Complaint, at Exhibit B (May 3, 2011 EEOC Charge). Again, plaintiff is not specifically
complaining of his failure to receive the Custodian position at Weeden Elementary School as part
of his claims in this case, but the fact that he filed an amended EEOC charge with regard to that
position is relevant to his later claims of retaliation.
46

Cobb Deposition, at 220.
16

interviewed. Plaintiff was not among the candidates who received an interview.47 The
interview committee recommended that the Superintendent select Dwight Perkins.
Perkins had more than ten years of experience as a custodian in another school system,
for the University of North Alabama, and for a private business. He also had served
as a substitute custodian at the Freshman Center and done a good job.48
Sheppard stated that, when the interview committee recommended Perkins for
the Custodian position at the Freshman Center in May of 2011, he did not know that
plaintiff had filed an EEOC charge or otherwise complained of discrimination or
retaliation.49 Dr. Womack — who succeeded Dr. Behrends as the Superintendent of
Education upon Behrends’ retirement on July 1, 2010 — testified that she had
discussed some of the allegations in plaintiff’s EEOC charge with Sheppard before the
Board submitted its response to the charge on January 18, 2011.50 For confidentiality
reasons, however, she did not directly inform Sheppard that plaintiff had filed an
EEOC charge. Instead, she simply told him that the Board was dealing with “a legal
question.”51 It is undisputed that, after plaintiff filed his EEOC charge, he was never

47

Defendant’s evidentiary submission, Exhibit J (Affidavit of Roderick Sheppard) ¶ 6.

48

Id. ¶ 7.

49

Id.

50

Womack Deposition, at 48-50, 102.

51

Id. at 48-50. See also Sheppard Deposition, at 63-65.
17

selected to interview for any other position for which he applied.52
Based on the committee’s selection of Perkins, Dr. Womack recommended that
the Board hire Perkins for the position, and the recommendation was approved. Dr.
Womack was not aware at the time she recommended Perkins that plaintiff had
applied for the position.53
4.

Special Education Teaching Assistant position at the Freshman
Center in August of 2011

Plaintiff applied for a position as a Special Education Teaching Assistant at the
Freshman Center that was posted on-line in August 2011.54 This Teaching Assistant
position was to assist the special education teacher in providing classroom instruction,
and not to provide one-on-one caretaker duties for a specific student.55 The Board
received seventy-three applications for that position. Sheppard formed an interview
committee that included Special Education Coordinator Lynn Sharp. Plaintiff was not
among the candidates who received an interview.56

The interview committee

recommended that the Superintendent select Christopher Lanzenstiel for the position.
Sheppard thought Lanzenstiel had a good interview, and he also had three years of

52

Cobb Declaration ¶ 8.

53

Womack Affidavit ¶ 31; see also Womack Deposition, at 17.

54

Cobb Deposition, at 223-25.

55

Sheppard Affidavit ¶ 8.

56

Id. ¶ 9; Cobb Deposition, at 233-34; Womack Affidavit ¶ 35.
18

experience as a special education teacher in Germany.57
Based upon the committee’s selection of Lanzenstiel, as well as upon
Lanzenstiel’s experience, Dr. Womack recommended that the Board hire Lanzenstiel
for the position, and the recommendation was approved. When she made that
recommendation, Dr. Womack did not know that plaintiff had applied for the
position.58
5.

Plaintiff’s complaint in this case

Plaintiff did not file an amended or additional EEOC charge addressing his
failure to receive any employment positions after February of 2011.59 He filed this
case on December 8, 2011.60
6.

Custodian position at the Freshman Center in January of 2012

Dwight Perkins, who received the position as Custodian at the Freshman Center
in May of 2011, transferred to Florence High School in January of 2012.61 The Board
then advertised to fill Perkins’ vacant position as the Custodian at the Freshman
Center. Plaintiff applied for that position, as did thirty-two other people.62 Sheppard
57

Sheppard Affidavit ¶ 10; Womack Affidavit ¶ 36.

58

Womack Affidavit ¶ 37.

59

Id. ¶ 49.

60

See Complaint.

61

Plaintiff also applied for the position at the High School, but his failure to receive that position
is not part of his claims in this case. See Cobb Deposition, at 241.
62

Id. at 247-48; Sheppard Affidavit ¶ 12.
19

and Auty Horn, the Assistant Principal of Florence Middle School, formed an
interview committee. Plaintiff was not among the candidates who received an
interview.63 The interview committee recommended that the Superintendent select
Joey Franklin for the position. Franklin had a good interview, and he had experience
performing custodial duties at a church where he also served as pastor.64
Based upon the committee’s selection of Franklin, Dr. Womack recommended
that the Board hire Franklin for the position, and the recommendation was approved.
When Dr. Womack made that recommendation, she did not know that plaintiff had
applied for the position.65
7.

Two Custodian positions at the Freshman Center in May of 2012

The Board advertised two open positions for Custodian at the Freshman Center
during May of 2012. Plaintiff applied for both positions, but he did not receive an
interview for either.66 The interview committee, which was formed by Sheppard and
Horn, selected Howard Brummett and Ceretha Perkins as the best candidates for the
two positions. Brummett had experience as a custodian in another state, and he had
done a good job as a substitute custodian at the Freshman Center. Perkins had

63

Sheppard Affidavit ¶ 12.

64

Id. ¶ 13.

65

Womack Affidavit ¶ 42.

66

Cobb Deposition, at 251-60.
20

experience as a housekeeper, and she had done such a good job as a substitute
custodian at the Freshman Center that many of the teachers lobbied for her to receive
the permanent Custodian position.67
Based upon the committee’s selection of Brummett and Perkins, as well as on
those candidates’ experience, Dr. Womack recommended that the Board hire
Brummett and Perkins for the two Custodian positions, and the recommendation was
approved. When she made those recommendations, Dr. Womack did not know that
plaintiff had applied for either Custodian position.68
III. DISCUSSION
A.

Claims Abandoned by Plaintiff
In plaintiff’s brief in response to defendant’s motion for summary judgment,

he “concedes that he cannot prove that the elimination of his position as a Security
Officer in May 2010 violated [the FMLA, Title VII, 42 U.S.C. § 1981, 42 U.S.C. §
1983,] or the 14th Amendment.”69 Thus, plaintiff cannot proceed with any claim
related to the termination of his employment.
Moreover, plaintiff has narrowed his failure to hire claims to the six positions
listed in Section II(F), supra. The court will not consider any claims related to
67

Sheppard Affidavit ¶ 16.

68

Womack Affidavit ¶¶ 44-45.

69

Doc. no. 30 (plaintiff’s response brief), at 16 n.2 (alteration supplied).
21

plaintiff’s failure to receive any other positions.
B.

Americans With Disabilities Act
Plaintiff has conceded that any ADA claim related to the Special Education

Teaching Assistant position at the Freshman Center that was filled by Charles Johnson
in May 2010 would be time-barred.70 He maintains, nevertheless, that defendant’s
failure to hire him for the other five positions specified in Section II(F), supra,
constituted disability discrimination in violation of the ADA.
“In the absence of direct evidence of discrimination, a plaintiff may establish
a prima facie case of an ADA violation through circumstantial evidence using the
familiar burden-shifting analysis employed in Title VII employment discrimination
cases.” Wascura v. City of South Miami, 257 F.3d 1238, 1242 (11th Cir. 2001); see
also, e.g., Hilburn v. Murata Electronics North America, Inc., 181 F.3d 1220, 1226
(11th Cir. 1999) (“The familiar burden-shifting analysis of Title VII employment
discrimination actions is equally applicable to ADA claims.”) (citing Moses v.
American Nonwovens, Inc., 97 F.3d 446, 447 (11th Cir. 1996)).
To establish a prima facie case of disability discrimination, plaintiff must
demonstrate: (1) that he has a “disability” within the meaning of the Act; (2) that he
is “a qualified individual with a disability,” meaning that he can perform the essential

70

See doc. no. 30, at 30 n.10.
22

functions of the employment position he holds or seeks, with or without reasonable
accommodation being made by the employer;71 and (3) that he suffered an adverse
employment action because of his disability. See, e.g., Lucas v. W.W. Grainger, Inc.,
257 F.3d 1249, 1255 (11th Cir. 2001); Reed v. Heil Co., 206 F.3d 1055, 1061 (11th
Cir. 2000); Davis v. Florida Power & Light Co., 205 F.3d 1301, 1305 (11th Cir.
2000).
Plaintiff cannot establish a prima facie case because he cannot show that he has
a “disability” within the meaning of the ADA. The Act defines the concept of
“disability” three ways — that is, as including any person: (A) who has “a physical
or mental impairment that substantially limits one or more major life activities of such
individual”; or (B) who has a “record” of such an impairment; or (C) who is “regarded
as” having such an impairment. 42 U.S.C. § 12102(1); see also 29 C.F.R. §
1630.2(g). “An individual is deemed to be ‘disabled’ for purposes of the ADA if he
satisfies any one of these three enumerated definitions.” Gordon v. E.L. Hamm &
Associates, Inc., 100 F.3d 907, 911 (11th Cir. 1996).
Plaintiff has not argued that he has an impairment that substantially limits one
71

See 42 U.S.C. § 12111(8) (defining “qualified individual with a disability” as “an individual who,
with or without reasonable accommodation, can perform the essential functions of the employment
position that such individual holds or desires”); see also 29 C.F.R. § 1630.2(m) (“The term
‘qualified,’ with respect to an individual with a disability, means that the individual satisfies the
requisite skill, experience, education and other job-related requirements of the employment position
such individual holds or desires and, with or without reasonable accommodation, can perform the
essential functions of such position.”).
23

of his major life activities. Stated differently, he has not asserted that he actually is
under a “disability,” as defined by the ADA. Instead, he contends that defendant
regarded him as being disabled. The ADA provides that
[a]n individual meets the requirement of “being regarded as
having such an impairment” if the individual establishes that he or she
has been subjected to an action prohibited under this chapter because of
an actual or perceived physical or mental impairment whether or not the
impairment limits or is perceived to limit a major life activity.
42 U.S.C. 12102(3)(A) (alteration supplied). An individual will not be “regarded as”
having a disability based on “impairments that are transitory and minor. A transitory
impairment is an impairment with an actual or expected duration of 6 months or less.”
42 U.S.C. 12102(3)(A). See also 29 C.F.R. §§ 1630.2(g)(1)(iii), 1630.2(l).
Plaintiff asserts that Sheppard regarded him as being disabled because of his
knee problems. According to plaintiff,
Sheppard was aware of Cobb’s knee problems and that he had to miss a
substantial amount of work for surgery and recovery related to his knee.
Prior to his becoming symptomatic, Sheppard had not written Cobb up
for poor performance or for allegedly not being at his work station.
After Cobb’s position was eliminated he applied for multiple positions
which all required substantial walking and standing. . . . Although he
had done the duties of a Special Education Teaching Assistant and
custodial duties while employed by the Defendant, Sheppard refused to
place Cobb in any of the positions for which he applied and refused even
to offer him an interview for the last five positions.72
The evidence does support plaintiff’s assertion that Sheppard was aware of
72

Doc. no. 30, at 31-32.
24

plaintiff’s knee surgery and subsequent absence from work. Even so, plaintiff’s knee
problem cannot be considered any more than a transitory or minor impairment. The
only knee-related problem plaintiff suffered while employed by the Board was an
orthoscopic procedure in 2010. He was out of work for approximately three months,
from February 22 to May 17, 2010, to recover from the procedure. There is no
indication that plaintiff suffered any significant impairments as a result of the
procedure after May of 2010. To the contrary, plaintiff not only returned to his job
as a Campus Security Officer at the Freshman Center at the end of May; he also
resumed his lawn care business, and he was able to walk four miles approximately
twice each week.
Moreover, even if plaintiff’s knee surgery could be considered more than a
minor or transitory impairment, there is no evidence connecting that impairment to the
Board’s decisions not to hire plaintiff for the five positions still at issue. The first
position of which plaintiff complains is the Freshman Center Custodian from May of
2011. By that time, more than a year had passed since plaintiff returned to work from
the orthoscopic procedure, and there is no indication that the Board perceived plaintiff
as continuing to suffer from any impairment. See Butler v. Advance/Newhouse
Partnership, No. 6:11-cv-1958-0Orl-28GJK, 2013 WL 1233002, *8 (M.D. Fla. Mar.
26, 2013) (slip copy) (“At most, there is evidence that Advance knew that Butler was
25

experiencing some back pain, was about to have back surgery, and was about to take
FMLA leave to recover for that surgery; this alone, however, is not evidence that
Advance regarded her as disabled within the meaning of the ADA.”).
Based on the foregoing, the court concludes that plaintiff does not have
sufficient evidence to survive defendant’s motion for summary judgment on his ADA
claim. Moreover, because summary judgment is due to be granted on the merits on
plaintiff’s ADA claim, there is no need to consider defendant’s alternative argument:
i.e., that plaintiff failed to exhaust his administrative remedies on that claim.
C.

Retaliation
Plaintiff also has alleged that his failure to receive all six positions identified

above was the result of unlawful retaliation, in violation of Title VII, the FMLA, 42
U.S.C. § 1981, and 42 U.S.C. § 1983.
1.

42 U.S.C. § 1983

Plaintiff’s § 1983 claim is based upon alleged violations of the Equal Protection
Clause of the Fourteenth Amendment.73 The Eleventh Circuit has clearly held that “a
constitutional claim for retaliation may be brought under 42 U.S.C. § 1983 pursuant
to the first amendment, not the equal protection clause.” Ratliff v. DeKalb County,
73

See, e.g., Complaint ¶ 18 (“Defendant violated Plaintiff’s . . . Fourteenth Amendment equal
protection rights by terminating him from his position and retaliated against him by refusing to place
Plaintiff in other positions for which he was qualified or the most qualified applicant after he made
a complaint of discrimination.”).
26

Ga., 62 F.3d 338, 341 (11th Cir. 1995) (italicized emphasis in original, boldface
emphasis supplied). Accordingly, summary judgment will be granted on all of
plaintiff’s retaliation claims asserted pursuant to § 1983 and the Fourteenth
Amendment.
2.

Title VII, the FMLA, and 42 U.S.C. § 1981
a.

Principles of law common to all statutes

The FMLA grants an eligible employee the right to take up to twelve
workweeks of unpaid leave annually for any one (or more than one) of several reasons
specified in the Act, including “[b]ecause of a serious health condition that makes the
employee unable to perform the functions of the position of such employee.” 29
U.S.C. § 2612(a)(1)(D) (alteration supplied). The FMLA creates a private right of
action against employers who “interfere with, restrain, or deny the exercise of or the
attempt to exercise” rights provided by the Act. 29 U.S.C. §§ 2615(a)(1), 2617(a); see
also, e.g., Nevada Department of Human Resources v. Hibbs, 538 U.S. 721, 724-25
(2003); Hurlbert v. St. Mary’s Health Care, 439 F.3d 1286, 1293-94 (11th Cir. 2006).
The Eleventh Circuit has recognized that Ҥ 2615(a) creates two types of
claims: ‘interference claims, in which an employee asserts that his employer denied
or otherwise interfered with his substantive rights under the Act, and retaliation
claims, in which an employee asserts that his employer discriminated against him
27

because he engaged in activity protected by the Act.’” Hulbert, 439 F.3d at 1293
(quoting Strickland v. Water Works & Sewer Board of the City of Birmingham, 239
F.3d 1199, 1206 (11th Cir. 2001)) (emphasis supplied, internal citations omitted).
Plaintiff has asserted the latter type of claim in this case.
In order to establish a claim for FMLA retaliation, “an employee must show
that his employer intentionally discriminated against him for exercising an FMLA
right.” Martin v. Brevard County Public Schools, 543 F.3d 1261, 1267 (11th Cir.
2008); see also 29 U.S.C. § 2615(a)(2); 29 C.F.R. § 825.220(c).

Unlike an

interference claim, an employee “bringing a retaliation claim faces the increased
burden of showing that his employer’s actions were motivated by an impermissible
retaliatory or discriminatory animus.” Strickland, 239 F.3d at 1207 (internal quotation
marks omitted). Where, as here, the plaintiff seeks to prove intentional retaliation
with circumstantial evidence, the court must analyze the case under the McDonnell
Douglas burden-shifting framework. See, e.g., Strickland, 239 F.3d at 1207. Under
that framework, the plaintiff bears the initial burden of presenting sufficient evidence
to allow a reasonable factfinder to determine that he has satisfied the elements of a
prima facie case. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). A
prima facie case of retaliation under the FMLA requires a showing that: (1) the
employee engaged in statutorily protected conduct; (2) the employee suffered an
28

adverse employment action; and (3) there is a causal connection between the two.
See, e.g., Smith v. BellSouth Telecommunications, Inc., 273 F.3d 1303, 1314 (11th Cir.
2001).
The process is much the same for evaluating a claim of retaliation under Title
VII. “Retaliation is a separate violation of Title VII.” Gupta v. Florida Board of
Regents, 212 F.3d 571, 586 (11th Cir. 2000). A plaintiff generally must prove three
elements to establish a prima facie case: (1) she engaged in statutorily protected
expression; (2) she suffered an adverse employment action; and (3) there was a causal
linkage between the protected conduct and the adverse employment action. See, e.g.,
Shannon v. BellSouth Telecommunications, Inc., 292 F.3d 712, 715 (11th Cir. 2002).
Once plaintiff establishes a prima facie case [of retaliation] by
proving only that the protected activity and the negative employment
action are not completely unrelated, the burden shifts to the defendant to
proffer a legitimate reason for the adverse action . . . . The burden then
shifts back to the plaintiff to prove by a preponderance of the evidence
that the “legitimate” reason is merely pretext for prohibited, retaliatory
conduct.
Sierminski v. Transouth Financial Corporation, 216 F.3d 945, 950 (11th Cir. 2000)
(citations omitted) (alteration supplied).
Finally, the Eleventh Circuit has held that the elements of proof for any claim
of discrimination or retaliation are the same under both Title VII and § 1981. See,
e.g., Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).
29

Thus, the same analysis will be used to evaluate all of plaintiff’s retaliation
claims, regardless of whether they arise are based upon the FMLA, Title VII, or 42
U.S.C. § 1981.
b.

Evaluation of each position for which plaintiff applied
i.

Special Education Teaching Assistant position at the
Freshman Center in May of 2010

Plaintiff acknowledges that this claim can be pursued only under the FMLA.74
It is not entirely clear from defendant’s briefs whether defendant contests plaintiff’s
ability to satisfy the prima facie case for FMLA retaliation with regard to this
position. Even so, a brief analysis reveals that plaintiff can satisfy all the requisite
elements. Plaintiff returned to work from protected FMLA leave on May 17, 2010,
and the Special Education Teaching Assistant position at the Freshman Center, which
was posted in May of 2010, was awarded to another candidate on June 3, 2010. The
close temporal proximity between plaintiff’s return from leave and his failure to
receive the position indicates a causal connection between his protected activity and
the subsequent adverse employment action. See, e.g., Martin, 543 F.3d at 1268
(“[T]he close temporal proximity between the two — Martin was terminated while on
FMLA leave — is more than sufficient to create a genuine issue of material fact of

74

See doc. no. 30, at 18 n.5 (“[F]or this particular position, [plaintiff] limits his claim to FMLA
retaliation.”) (alterations supplied).
30

causal connection.”) (citing Hulbert, 439 F.3d at 1298 (alteration supplied); Farmer
v. Bisk Education, Inc., No. 8:08-cv-00239-JDW-EAJ, 2009 WL 2246137, at *5
(M.D. Fla. July 27, 2009) (“The general rule is that close temporal proximity between
the employee’s protected conduct and the adverse employment action is sufficient
circumstantial evidence to create a genuine issue of material fact of a causal
connection.”) (quoting Brungart v. BellSouth Telecommunications, Inc., 231 F.3d 791,
799 (11th Cir. 2000) (internal quotation marks omitted).
The Board offered legitimate, non-discriminatory reasons for choosing Charles
Johnson over plaintiff for the Special Education Teaching Assistant position:
The interview committee interviewed both [plaintiff Vincent Edward]
Cobb and Charles Johnson and it found Johnson to be the better
candidate. While Johnson worked as a security officer at Florence High
School, he had demonstrated a very good rapport with students and did
a good job of developing relationships with students. Johnson had
shown an ability to work with special needs children at the Alternative
School. Johnson had also shown outside of school that he was a
community leader.75
Plaintiff asserts that these proffered reasons are actually a pretext for retaliatory
animus. Plaintiff’s burden at the pretext stage is that of “cast[ing] sufficient doubt on
the defendant’s proffered nondiscriminatory reasons to permit a reasonable factfinder
to conclude that the employer’s proffered ‘legitimate reasons were not what actually
motivated its conduct’ . . . .” Combs v. Plantation Patterns, 106 F.3d 1519, 1538
75

Doc. no. 25 (defendant’s summary judgment brief), at 34 (alteration supplied).
31

(11th Cir. 1997) (quoting Cooper-Houston v. Southern Railway Co., 37 F.3d 603, 605
(11th Cir. 1994)) (alterations supplied); see also Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 135 (2000) (“[A] plaintiff’s prima facie case, combined
with sufficient evidence to find that the employer’s asserted justification is false, may
permit the trier of fact to conclude that the employer unlawfully discriminated.”)
(alteration supplied).

Plaintiff shoulders that burden by demonstrating “such

weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reasonable factfinder
could find them unworthy of credence.” Combs, 106 F.3d at 1538 (quoting Sheridan
v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1072 (3d Cir. 1996) (en banc)
(internal quotation marks omitted).
Plaintiff first asserts that “there is no dispute but that Cobb met the minimum
qualifications for the position[] for which he applied and that he had more experience
in that position than Johnson.”76 Plaintiff does not explain that conclusory statement
any further, nor does he point to any evidence to support it. “In the context of a
promotion, ‘a plaintiff cannot prove pretext by simply arguing or even by showing
that he was better qualified than the [person] who received the position he coveted.’”
Springer v. Convergys Customer Management Group Inc., 509 F.3d 1344, 1349 (11th

76

Doc. no. 30, at 20 (alteration supplied).
32

Cir. 2007) (citing Brooks v. County Comm’n of Jefferson County, 446 F.3d 1160, 1163
(11th Cir. 2006) (in turn citing Alexander v. Fulton County, 207 F.3d 1303, 1339
(11th Cir. 2000))) (alteration in original). “Instead, a 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.’” Springer, 509
F.3d at 1349 (citing Cooper v. Southern Co., 390 F.3d 695, 725 (11th Cir. 2004)). See
also Ash v. Tyson Foods, Inc., 546 U.S. 454, 456-57 (2006).
The record does not demonstrate that plaintiff was so much more qualified than
Johnson that no reasonable decision maker could have chosen Johnson over plaintiff.
Plaintiff did have experience as a Special Education Teaching Assistant, but his
assignment was to work one-on-one with a student with behavioral issues in order to
keep the student calm and controlled in furtherance of the learning environment. The
position for which plaintiff applied in May of 2010, in contrast, had more instructional
requirements, including administering tests, reinforcing learned material, assisting
with use of instructional equipment, and distributing assignment materials. The
position also required the Assistant to work with groups of students in a classroom
setting or during field trips, not the one-on-one work plaintiff to which plaintiff was
accustomed in his previous position. Johnson, on the other hand, had experience
33

working with larger numbers of special needs students at the alternative school, and
he demonstrated during his service as a Security Officer at the High School that he
was skilled at developing relationships with students. Neither applicant had previous
experience in the exact position for which both had applied, and it was not
unreasonable, or unlawful, for the Board to consider Johnson’s previous experience
and demonstrated skill set to be more valuable to the position than plaintiff’s.
Plaintiff’s second pretext argument is that “Sheppard was on the selection and
interview panels for that position and Sheppard had indicated to Cobb that Cobb’s
presence was needed at the school while he was on FMLA leave and that Cobb’s
being out of school for his knee was not an option.”77 The record does not support
plaintiff’s assertion. Although plaintiff did allege in his complaint that Sheppard had
made those statements,78 he testified during his deposition that Sheppard’s statements
were of a very different nature. For clarity, the court will reiterate the relevant portion
of plaintiff’s deposition in full:
Q:
And then the last sentence [of the EEOC charge] says, “The
Principal indicated to me on more than one occasion that my presence
would be needed at the school as per my employment and being out for
77

Doc. no. 30, at 20.

78

See Complaint ¶ 9 (“Plaintiff had been informed by the principal after his surgery that his presence
was needed at the school and that being out for Plaintiff’s knee was not an option.”); id. at Exhibit
A (December 17, 2010 EEOC Charge) (“The Principal had indicated to me on more than one
occasion that my presence would be needed at the school as per my employment and being out for
my knee was not an option.”).
34

me was not option.”
A.
No, he had said that my absence was missed, that he missed
— my absence being there due to the fact that they were [sic] only one
officer present. And that he would be — appreciate it if I could get back
to work as soon as possible.
Q.
correct?

So when you say “he,” we are talking about Mr. Sheppard,

A.

Yeah, um-hum.

Q.

When did Mr. Sheppard say that to you?

A.
I don’t remember the actual date. But, like I said, I think I
visited the school once or twice during that time that I had surgery. And
he would ask me when I had planned on coming back to work.
Q.
Okay. Is this between — Did he say this to you between
February 22nd, 2010, and May 17th, 2010?
A

Yes, sir.

Q.
Okay. And what exactly, I mean, what specifically did he
say to you?
A.
It wasn’t anything mean and malicious. He just said that
my presence was missed and that he would be glad when I can turn —
that he hoped I can return back to work as soon as possible.
Q.

Okay. Did he say anything else that you can recall?

A.
Huh-uh, that was the gist of his conversation. That was all
that was said.79
Sheppard’s statements as they were recounted in plaintiff’s deposition testimony do
79

Cobb Deposition, at 162-64 (emphasis and alteration supplied).
35

not indicate a retaliatory motive, and they do nothing to discredit any of defendant’s
proffered legitimate reasons for choosing Johnson over plaintiff for the position.
Finally, plaintiff attempts to discredit any suggestion by defendant that he could
not always be found at his assigned work station. As plaintiff’s absence from his
work station was not one of defendant’s proffered legitimate, non-retaliatory reasons
for not choosing plaintiff for the position, the truth or falsity of defendant’s claims is
irrelevant.
ii.

Custodian position at the Freshman Center in May of
2011

Defendant asserts that plaintiff cannot establish a prima facie case of retaliation
for this position because he cannot demonstrate a causal connection between any
protected activity and the adverse employment action.80 To establish a causal
connection at the summary judgment stage, “a plaintiff merely has to prove that the
protected activity and the negative employment action are not completely unrelated.”
Meeks v. Computer Associates International, 15 F.3d 1013, 1021 (11th Cir. 1994)
(quoting EEOC v. Reichhold Chemical, Inc., 988 F.2d 1564, 1571-72 (11th Cir.
1993)). “At a minimum, a plaintiff must generally establish that the employer was
actually aware of the protected expression at the time it took the adverse employment
80

Defendant does not contest the other elements of the prima facie case. Indeed, it is clear that
plaintiff engaged in protected activity when he took FMLA leave and filed an EEOC charge, and
that he suffered an adverse employment action when he did not receive the position.
36

action.” Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 919 (11th Cir. 1993).
Accord Raney v. Vinson Guard Service, Inc., 120 F.3d 1192, 1197 (11th Cir. 1997)
(“[A] plaintiff must, at a minimum, generally establish that the defendant was actually
aware of the protected expression at the time the defendant took the adverse
employment action.”) (alteration supplied). See also, e.g., Gupta, 212 F.3d at 590
(“[A] plaintiff must show that ‘the decisionmakers were aware of the protected
conduct,’ and ‘that the protected activity and the adverse action were not wholly
unrelated.’”) (quoting Farley v. Nationwide Mut. Ins., 197 F.3d 1322, 1337 (11th Cir.
1999)) (alteration supplied). “Close temporal proximity between the protected activity
and the adverse action may be sufficient to show that the two were not wholly
unrelated.” Bass v. Bd. of County Commissioners, 256 F.3d 1095, 1119 (11th Cir.
2001) (citing Gupta, 212 F.3d at 590) (emphasis supplied).
With regard to plaintiff’s FMLA retaliation claim, he cannot demonstrate a
causal connection because the decision about the Custodian position at the Freshman
Center was not made until May of 2011, a full year after plaintiff returned from
FMLA leave. The Eleventh Circuit has held that a time gap of even a few months is
too long to support a causal connection. See Higdon v. Jackson, 393 F.3d 1211, 1221
(11th Cir. 2004). The year-long gap here clearly is too long, standing alone, to
support a causal connection. Plaintiff responds to this point by stating that, “between
37

December 2010, and January 18, 2011, a jury could conclude Sheppard was reminded
of Plaintiff’s FMLA leave when Womack contacted him about Plaintiff’s charge of
discrimination, thus restarting the time clock on temporal proximity.”81 Plaintiff cites
no authority, and the court knows of none, to support this “restarting the time clock”
theory. Moreover, there is no evidence in the record to support the theory. Plaintiff’s
attorney never asked Sheppard any questions during his deposition regarding whether
he was reminded of plaintiff’s FMLA leave when Womack asked him about some of
the allegations in plaintiff’s EEOC charge. Plaintiff’s argument is too speculative;
therefore, plaintiff cannot support a prima facie of retaliation under the FMLA for this
position.
With regard to plaintiff’s Title VII and § 1981 retaliation claims, defendant
asserts that plaintiff cannot establish a causal connection because “[t]here is no
evidence that anyone on the interview committee knew Cobb had filed an EEOC
Charge or otherwise complained of discrimination or retaliation.”82 It is true that
Sheppard stated in his affidavit that, when the interview committee selected Perkins
for the Custodian position at the Freshman Center in May of 2011, he did not know
that plaintiff had filed an EEOC charge or otherwise complained of discrimination or
retaliation. Even so, plaintiff has presented contradictory evidence. Dr. Womack
81

Doc. no. 30, at 25.

82

Doc. no. 25, at 42 (alteration supplied).
38

testified that she had discussed some of the allegations in plaintiff’s EEOC charge
with Sheppard before the Board submitted its response to the charge on January 18,
2011. Even though Dr. Womack did not specifically inform Sheppard that plaintiff
had filed an EEOC charge, she did tell Sheppard that her questions about plaintiff
related to a “legal problem.” Thus, even if Sheppard did not have specific knowledge
that plaintiff had filed an EEOC charge, a reasonable jury could conclude that plaintiff
was aware that plaintiff had filed some sort of discrimination complaint. Sheppard’s
knowledge, coupled with the close temporal proximity between the date of plaintiff’s
amended charge (May 3, 2011) and the Board’s decision not to award him the
Custodian position at the Freshman Center in May of 2011 is enough to establish a
causal connection. Accordingly, plaintiff has satisfied the prima facie case for his
claim of retaliation relating to this position.83
Even so, defendant has proffered a legitimate, non-retaliatory reason for
selecting Dwight Perkins instead of plaintiff for the position. Defendant states that
Perkins was more qualified for the position because he had over ten years of
experience as a custodian, including work for a university and a private business.
Plaintiff, in contrast, had never held a custodian position, even though some of his

83

Because plaintiff has established Sheppard’s knowledge of his protected activity, there is no need
to consider plaintiff’s alternative argument that Dr. Womack, who undisputedly knew about
plaintiff’s EEOC charge, was merely Sheppard’s “cat’s paw.”
39

previous jobs had required him to perform some custodial duties.
Plaintiff asserts that defendant’s proffered reason is merely a pretext for
retaliation. Specifically, he states:
[G]iven that Cobb was not allowed to interview for the position, that part
of Cobb’s duties as Security Officer involved custodial duties, the
comments Sheppard had made about Cobb’s leave for his knee surgery
and recovery, that Womack had discussed the allegations of the EEOC
charge with Sheppard some time between December 17, 2010 and
January 18, 2011, and that Perkins was not disabled, had not filed an
EEOC charge and had not utilized FMLA leave, a jury could conclude
that Defendant’s articulated reason for its actions was pretextual for
unlawful retaliation.84
Sheppard’s comments about plaintiff’s FMLA leave, Perkins’ non-use of FMLA
leave, and Perkins’ lack of a disability are not relevant to plaintiff’s retaliation claim
under Title VII and § 1981. Sheppard’s awareness of plaintiff’s EEOC charge was
relevant to plaintiff’s prima facie case, but it does nothing to undercut defendant’s
proffered legitimate, non-discriminatory reasons. The fact that Perkins, unlike
plaintiff, had never filed a EEOC charge might constitute some evidence to support
plaintiff’s retaliation claim, but it does not disprove defendant’s proffered legitimate,
non-discriminatory reasons. Most importantly, given Perkins’ ten years of experience
as a custodian, including in an educational setting, there is no evidence of such a
disparity between plaintiff’s and Perkins’ qualifications that no reasonable person

84

Doc. no. 30, at 26 (alteration supplied).
40

could have selected Perkins over plaintiff. See Springer, 509 F.3d at 1349. Finally,
the fact that plaintiff did not receive an interview serves only to reinforce defendant’s
view that plaintiff was not as qualified as other candidates, including Perkins.
Because plaintiff has not demonstrated that defendant’s proffered legitimate
reasons for not selecting plaintiff for the Custodian position at the Freshman Center
in May of 2011 were a mere pretext for retaliation, summary judgment is due to be
granted with regard to that position.
iii.

Special Education Teaching Assistant position at the
Freshman Center in August of 2011

As with the previous position, defendant asserts that plaintiff cannot establish
a prima facie case of retaliation for the Special Education Teaching Assistant position
at the Freshman Center in August of 2011 because he cannot show a causal
connection between any protected activity and the adverse employment action. As
with the previous position, plaintiff cannot demonstrate a causal connection for his
FMLA retaliation prima facie case on this position because the hiring decision was
not made until more than a year after plaintiff returned from FMLA leave. Plaintiff
can, however, establish a prima face case with regard to his Title VII and § 1981
retaliation claims, because a reasonable jury could conclude that Sheppard was aware
that plaintiff had filed a discrimination complaint, and that the temporal proximity
between plaintiff’s amended EEOC charge and the Board’s decision not to hire him
41

for the position indicates a causal connection.
Even so, defendant has offered a legitimate, non-retaliatory reason for selecting
Christopher Lanzensteil instead of plaintiff for the position. Defendant states that
Lanzensteil was more qualified than plaintiff because he had three years of experience
instructing children with various disabilities as a Special Education Teacher in
Germany. Plaintiff, in contrast, did not have any experience as a teacher. He had
experience as a Special Education Teaching Assistant, but he did not have any
instructional responsibilities in that position. Instead, he was assigned to a single
student with behavioral issues to maintain order and calmness.
Plaintiff asserts that defendant’s proffered reason is really a mere pretext for
retaliation. Specifically, plaintiff states:
[G]iven that the position did not require teaching experience, that Cobb
was not allowed to interview for the position, that Cobb had previously
done the job, the comments Sheppard had made about Cobb’s leave for
his knee surgery and recovery, that Plaintiff had filed an EEOC Charge
some nine (9) months before, that Womack had discussed the allegations
of the EEOC charge with Sheppard some time between December 17,
2010, and January 18, 2011, and that Lanzenstiel was not disabled, had
not filed an EEOC charge and had not utilized FMLA leave, a jury could
conclude that Defendant’s articulated reason for its actions was
pretextual for retaliation.85
As discussed in connection with the previous position, these arguments do nothing to
disprove or discredit defendant’s proffered legitimate, non-retaliatory reasons. Most
85

Doc. no. 30, at 27 (alteration supplied).
42

importantly, there is no evidence of such a disparity between plaintiff’s and
Lanzenstiel’s qualifications that no reasonable person, in the exercise of impartial
judgment, could have selected Lanzenstiel over plaintiff. While plaintiff had served
as a Special Education Teaching Assistant before, it was only to work with a large
male special needs student who had suffered a brain injury and sometimes was a
behavioral problem, but not to provide instruction. Lanzenstiel, on the other hand,
had instructional experience as a Special Education teacher in Germany. Even though
teaching experience was not a requirement for the Special Education Teaching
Assistant position, it was reasonable for the Board to value Lanzenstiel’s instructional
experience as a teacher over plaintiff’s less relevant experience as a Teaching
Assistant assigned to maintain the calmness and order of a single student. Finally, the
fact that plaintiff did not receive an interview serves only to reinforce defendant’s
view that plaintiff was not as qualified as other candidates, including Lanzenstiel; it
does not indicate retaliation.
Because plaintiff has not demonstrated that defendant’s proffered legitimate
reasons for not selecting plaintiff for the Special Education Teaching Assistant
position at the Freshman Center in August of 2011 were a pretext for retaliation,
summary judgment is due to be granted with regard to that position.
iv.

Custodian position at the Freshman Center in January
of 2012
43

Defendant again asserts that plaintiff cannot establish a prima facie case of
retaliation with regard to this position because he cannot demonstrate a causal
connection between any protected activity and his failure to receive the position. With
regard to plaintiff’s FMLA retaliation claim, this court agrees, because the decision
not to hire plaintiff for this position was made a year and nine months after plaintiff
returned to work from FMLA leave. That is far too great of a temporal gap to support
a causal connection. With regard to the retaliation claim under Title VII and 42
U.S.C. § 1981, the temporal proximity between even plaintiff’s amended EEOC
charge (filed in May of 2011) and the employment decision (in January of 2012)
would be too great to support a causal connection. Even so, a reasonable jury could
conclude that the temporal gap between plaintiff’s protected activity of filing the
complaint in this case in December of 2011 and the employment decision in January
of 2012 is sufficiently close to support a causal connection.
Once again, however, defendant has offered a legitimate, non-retaliatory reason
for choosing Joey Franklin for this position instead of plaintiff; that is, Franklin had
a very good interview and had performed some custodial duties while he was the
pastor of a small church.
Plaintiff argues that defendant’s proffered reason really is a mere pretext for
retaliation. Specifically, he states:
44

[G]iven that the that [sic] Cobb was not even allowed to interview for the
position, that part of Cobb’s duties as Security Officer involved custodial
duties, the comments Sheppard had made about Cobb’s leave for his
knee surgery and recovery, that Womack had discussed the allegations
of the EEOC charge with Sheppard, that Cobb had filed suit making
allegations under the FMLA and the other statutes in December of 2011,
that Franklin had not filed an EEOC charge, was not disabled and had
not utilized FMLA leave, a jury could conclude that Defendant’s
articulated reason for its actions was pretextual for retaliation and
disability discrimination.86
Most of these arguments are the same ones plaintiff has asserted with regard to the
other positions, and they are unpersuasive for the reasons already stated. Plaintiff’s
assertion that he had performed some custodial duties as a Security Officer also is not
persuasive. Neither plaintiff nor Franklin had ever served as a full-time custodian, but
both had performed some cleaning duties as part of previous positions. Even
assuming plaintiff’s responsibility for cleaning the cafeteria while he was a Security
Officer was equal to Franklin’s custodial duties as a pastor, that would render the two
candidates more or less equally qualified. It cannot be said that the difference in the
two men’s qualifications was so great that no reasonable person would have chosen
Franklin over plaintiff for the position.
Because plaintiff has not demonstrated that defendant’s proffered legitimate
reasons for not selecting plaintiff for the Custodian position at the Freshman Center
in January of 2012 were a mere pretext for retaliation, summary judgment is due to
86

Doc. no. 30, at 28 (alterations supplied).
45

be granted with regard to that position.
v.

Custodian positions at the Freshman Center in May of
2012

Plaintiff cannot establish a prima facie case of retaliation with regard to either
of the Custodian positions at the Freshman Center in May of 2012 because he cannot
demonstrate a causal connection between any protected activity and the decisions not
to hire him for those positions. The temporal proximity between any protected
activity — regardless of whether it be plaintiff’s FMLA leave, EEOC charge, or the
complaint filed in this case — and the employment decisions is too great, and there
is no additional evidence to support a causal connection.
Even if plaintiff could establish a prima facie case with regard to these two
positions, defendant has offered a legitimate, non-retaliatory reason for not selecting
plaintiff. Defendant states that it selected Howard Brummett for one of the positions
because Mr. Brummett had previous experience as a custodian in Indiana, and he had
also served as a substitute custodian at the Freshman Center. Defendant selected
Ceretha Perkins for the other position because she had experience as a housekeeper
and as a substitute custodian at the Freshman Center. Additionally, many teachers
thought Perkins did such a good job as a substitute custodian that they lobbied for her
to receive the permanent position. Plaintiff, in contrast, had never had a full-time job
as a custodian, although he had performed some cleaning duties as part of his previous
46

jobs.
Plaintiff argues that these proffered reasons are actually a mere pretext for
retaliation. Specifically, he states:
[G]iven that the that [sic] Cobb was not even allowed to interview for the
positions, that part of Cobb’s duties as Security Officer involved
custodial duties, the comments Sheppard had made about Cobb’s leave
for his knee surgery and recovery, that Womack had discussed the
allegations of the EEOC charge with Sheppard some time between
December 17, 2010 and January 18, 2011, and that neither Brummett or
Perkins had filed an EEOC charge, had a disability or had utilized FMLA
leave, a jury could conclude that Defendant’s articulated reason for its
actions was pretextual for retaliation and disability discrimination.87
These are the same arguments plaintiff has raised with regard to the other positions,
and for the same reasons previously stated, the court is not persuaded by them.
Because plaintiff cannot establish a prima facie case of retaliation, and because
he has not demonstrated that defendant’s proffered legitimate reasons for not selecting
plaintiff for the Custodian positions at the Freshman Center in May of 2012 were a
mere pretext for retaliation, summary judgment is due to be granted with regard to
those positions.
c.

Conclusion

Because plaintiff either cannot establish a prima facie case of retaliation, or
cannot demonstrate that defendant’s proffered legitimate, non-retaliatory reasons are

87

Id. at 30 (alterations supplied).
47

actually a mere pretext for retaliation, summary judgment is due to be granted on all
of plaintiff’s retaliation claims pursuant to the FMLA, Title VII, and 42 U.S.C. §
1981. Furthermore, because defendant is entitled to summary judgment on the merits
on all of plaintiff’s retaliation claims, the court need not consider plaintiff’s alternative
argument that plaintiff failed to exhaust his administrative remedies.88
IV. CONCLUSION
In accordance with the foregoing, the court finds there are no genuine issues of
material fact, and defendant is entitled to judgment as a matter of law on all of
plaintiff’s claims.

Accordingly, defendant’s motion for summary judgment is

GRANTED, and all claims are DISMISSED with prejudice. Costs are taxed to
plaintiff. The Clerk is directed to close this file.
DONE and ORDERED this 18th day of September, 2013.

______________________________
United States District Judge

88

The exhaustion of administrative remedies argument would, in any event, only have applied to
plaintiff’s Title VII retaliation claim. There is no administrative exhaustion requirement under 42
U.S.C. § 1981 or the FMLA. See, e.g., Mathis v. Leggett & Platt, 263 F. App’x 9, 12 (11th Cir.
2008) (§ 1981); Shanks v. Potter, No. CV 110–045, 2010 WL 8347107, *5 n.4 (S.D. Ga. Dec. 28,
2010) (FMLA).
48