Owens v. Jackson County Board of Education et al
MEMORANDUM OPINION-re: Motion for Summary Judgment 34 . Signed by Senior Judge Inge P Johnson on 6/25/2013. (AVC)
2013 Jun-25 PM 03:24
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JOY LYNETTE OWENS,
CASE NO. CV-12-J-2006-NE
JACKSON COUNTY BOARD OF
Pending before the court is the defendants’ motion for summary judgment (doc.
34), brief in support of said motion (doc. 35) and evidentiary submissions( doc. 36),
to which the plaintiff filed an opposition and further evidence (docs. 41-43). The
defendants thereafter filed a reply (doc. 44). The court has considered the motions,
evidence and arguments submitted by the parties in support of their respective
I. FACTUAL BACKGROUND
By amended complaint the plaintiff alleges the defendants discriminated and
retaliated against her, in violation of Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. § 2000e et seq, and 42 U.S.C. § 1983. The plaintiff asserts that she
has applied, and been passed over, for multiple promotions because she is a female
and because she previously engaged in protected activity.
The plaintiff began working for defendant Jackson County Board of Education
in 1988 as a kindergarten teacher. Plaintiff depo. at 18. She is currently a fifth and
sixth grade language arts teacher at Rosalie Elementary. Id. at 34, 36. She has also
served as a basketball and softball coach throughout her tenure. Id. at 22-25.
Because Rosalie Elementary does not have an Assistant Principal, she has often filled
that role. Plaintiff declaration (plaintiff ex. 81), ¶ 3.
Defendant Harding is the superintendent.
He makes hiring and firing
recommendations to the defendant Board of Education. Harding depo. at 25-26. The
Board can either accept or reject his recommendations. Id. at 39-40.
Defendant Harding uses a committee system to conduct interviews for
supervisory positions, so that he interviews a candidate and the committee interviews
the same candidate immediately thereafter. Harding depo. at 51-52. The committee
then makes a recommendation to Harding and he makes that recommendation to the
Board. Id. at 52. He chooses the committees by who he knows in each community
or relying on someone he knows if he does not know people in a particular
community. Id. at 52-53. He destroys his notes and vote counts when a position is
filled. Id. at 70-71.
Although the defendants allege the committee system is evidence that there is
no discrimination in the selection process for various vacancies, the defendant School
Board members’ depositions contradict that assertion. John Lyda was elected to the
School Board in 2010. Lyda depo. at 28. He believes the policies implemented by
Mr. Harding do not afford every applicant the same opportunity because there is
“preselection” taking place. Id. at 13, 38-39. Lyda has heard from multiple people
that the committees are “stacked” in order to hire the person Harding wants, but he
does not think this is true. Id. at 54-55. He also believed that committee decisions
presented to the Board as “unanimous” were not, and knew that the Superintendent
“has got to be the one that makes the final call, regardless of what the committee
says.” Id., at 14-15. Lyda has recommended that the hiring policies and interview
process be changed. Id. at 37-38. Mr. Harding was not receptive to changing any
policies. Lyda depo. at 38; Grant depo. at 48.
Dana Moore served as president of the School Board of Education. Moore
depo. at 12. He was previously Director of the Technical School in Jackson County,
before that was the Child Nutrition Supervisor, and prior to that was a principal at
Bryant Elementary. Id. at 14-16. Mr. Moore testified there has been discussion that
Jackson County does not hire the most qualified individuals and does not follow its
own procedure. Id. at 53, 58. He personally has criticized the committee system and
the selection of the committees. Id. at 54. To be unbiased, the committee should be
picked by someone other than Harding as the superintendent. Id., at 54-56, 63-64.
The Board has discussed the need for a new hiring policy. Id., at 63.
In filling assistant principal positions, Harding stated he usually talks with the
principal about the applicants but he does not sit in on the interviews and accepts the
recommendations of the principals in filling these positions. Harding depo. at 77-78.
A. Jobs applied for predating plaintiff’s first EEOC charge
Principal at Rosalie Elementary School (May 2010): Plaintiff states she is
not bringing a claim for this position and further notes that the position was filled by
a female. Plaintiff depo. at 37-38. According to plaintiff, a male was supposed to be
hired for this position until State Senator Lowell Barron asked defendant Harding to
hire Rhonda Wheeler as principal for Rosalie Elementary. Id at 60. See also Harding
depo. at 136. Cecil Grant, who has been on the Jackson County Board of Education
since November 2010, also heard from Harding that Senator Barron asked that
Rhonda Wheeler be placed in that position. Grant depo. at 11-12. Defendants
provided the affidavit of Wesley Barrentine (defendant exhibit 103) as evidence of
why plaintiff was not selected for this position. The affidavit contradicts the
testimony that pressure from Lowell Barron caused Ms. Wheeler to be selected as
principal of Rosalie Elementary.
Principal at Skyline High School (May 2010): A male, Kevin Dukes, with
less experience than plaintiff as a teacher, but who had been an assistant principal for
one year, was placed into this position. Plaintiff depo. at 72-73, plaintiff ex. 27.
Kevin Dukes was transferred from assistant principal at North Jackson High School
to principal at Skyline High School. Harding depo. at 141. Mr. Dukes’ highest
certificate is a Class AA, received in 2007. Harding depo. at 142. Gant heard that
Dukes was given this job because he was close to Harding, and not because of his
skill or professionalism. Gant depo. at 34.
Assistant Principal at North Jackson High School (June 2010): After
applying for this position, the plaintiff called to set up an interview with the principal,
Sam Houston, but Mr. Houston would not speak with her. Plaintiff depo. at 74-75.
According to Houston, the plaintiff never contacted him, so she did not get
interviewed.1 Houston depo. at 23. A male, Doug Haynes, filled this position.
Plaintiff depo. at 74-75; Houston depo. at 19. Mr. Haynes had less experience than
plaintiff and only possessed a Masters degree in Administration, whereas she holds
a Educational Specialist in Administration (“Ed.S.”).2 Plaintiff depo. at 76-77, see
Mr. Houston suggested he interviewed everyone who contacted him, and the plaintiff
simply did not contact him. Houston depo. at 23. He ended up interviewing Doug Haynes,
Scotty Overdear, and Shawn Phillips. Id., at 25.
According to Harding, an Ed.S. is an AA level certification, ranking it above an A
certification. Harding depo. at 103-104.
also plaintiff ex. 35.
Haynes received a Class A certificate in educational
administration in 2008. Harding depo. at 157. Haynes was a teacher at North
Jackson High School prior to his promotion. Plaintiff ex. 37; Houston depo. at 26.
The plaintiff also alleges she had more experience teaching professional development
courses than Haynes and that she was in charge of the state mandated school
improvement plan at Rosalie. Plaintiff depo. at 77.
Assistant Principal at Pisgah (two positions – June 2010): Both of these
positions were filled by men. Plaintiff depo. at 80. Billy Glen Shelton, who received
one position, was a classroom teacher at Pisgah High School and Gene Roberts, hired
for the other one, was a Physical Education teacher at Rosalie Elementary. Plaintiff
depo. at 80. See also plaintiff ex. 40; Guffey depo. at 22-23; Roberts depo. at 14-15.
The plaintiff interviewed with the principal, Mark Guffey. Plaintiff depo. at 82-83.
Guffey told her that one of the positions would be filled by Roberts and he had no say
over that one. Id., at 83. The plaintiff had more years of classroom experience than
Shelton and a higher degree.3 Id., at 86-87. She also held a higher degree than
Mr. Shelton’s highest certification is a Class A, as Educational Administrator, Grades P12. Plaintiff ex. 38; Harding depo. at 168-169. According to Guffey, he selected Shelton
because Shelton was already teaching at Pisgah and therefore knew strategic teaching and tiered
instruction. Guffey depo. at 26. Shelton had no prior administrative experience. Harding depo.
Roberts.4 Plaintiff depo. at 87. According to Guffey, he had a fractional position for
which Mr. Harding both offered to fill it and to fill it with Mr. Roberts. Guffey depo.
at 30-32, 37-38. Harding explained there was a ½ unit Physical Education position
so he created another ½ unit assistant principal position “because we could.” Harding
depo. at 165-166. Cecil Gant stated that Harding placed Roberts at Pisgah as an
assistant principal without Board approval. Gant depo. at 32-33.
After Mr. Roberts was hired as the interim principal at Section, no one has
filled this fractional position again. Guffey depo. at 39-40; Harding depo. at 164.
B. Jobs applied for and covered by plaintiff’s July 2011 EEOC Charge
Section High School Principal and Assistant Principal (May 2011): The
plaintiff was not given an interview for the assistant principal job and a male, Steve
Durham, who had been principal, was placed in the assistant principal role. Plaintiff
depo. at 90; plaintiff ex. 11. Durham holds at least a Class A certification (Master’s
level).5 Harding depo. at 103.
Evidence reflects that the plaintiff holds a Class AA certification as an educational
administrator, Grades P-12, received August 26, 2004. Plaintiff ex. 15. Plaintiff’s other
certifications all involve grades P-6 or lower. Id. From 1988 until 2007, she taught kindergarten,
except for two years as a 3rd grade teacher. Plaintiff ex. 15 at JCBOE 000224. Since 2008,
plaintiff has taught 5th to 6th grade language arts. Id.
The evidence reflects that Mr. Durham does hold a Class AA certification, as Principal,
Grades P-12, issued on September 18, 1987. Plaintiff ex. 9.
When asked about whether going from a principal to an assistant principal
would be a classification change rather than a transfer, Harding testified that Durham
was never actually placed in the assistant principal position, but rather was transferred
as principal of Section High School directly to principal of Stevenson Elementary.
Harding depo. 83-87. However, June 2011 Board minutes reflect Durham was
transferred from principal to assistant principal at Section High School, and Board
minutes from July 2011 reflect Durham was transferred from assistant principal at
Section High School to principal at Stevenson Elementary, effective August 29, 2011.
Plaintiff ex. 4; Harding depo. at 88-89, 106. Harding thus clarified that Durham was
actually placed in the assistant principal position until the principal at Stevenson (Dr.
Allen, a female) retired. Harding depo. at 92. According to John Lyda, Durham was
demoted due to poor performance as principal at Section High School. Lyda depo.
at 30. In fact, Mr. Lyda objected to Durham being given another principal position,
but Harding stated Durham should be given another chance because he had
previously been a successful elementary principal. Lyda depo. at 31.
The plaintiff interviewed for the Section High School principal position along
with Christy Bell and Gene Roberts.6 Plaintiff depo. at 96; Harding depo. at 110.
Defendants provided the affidavit of Deborah Cordell (defendants exhibit 106) as
someone who served on “a committee to assist in selecting a principal for Section K-12 School.”
Affidavit of Cordell, at 1. However, Ms. Cordell does not specify whom the committee selected.
Gene Roberts was hired for the principal job at the same time Durham was made
assistant principal.7 Plaintiff depo. at 90; plaintiff exs. 5, 8. Roberts had no prior
administrative experience, other than serving as interim principal for two months
while Durham was having a hip replacement.8 Harding depo. at 105-110. Harding
informed Roberts that Durham would be his assistant principal. Roberts depo. at 38;
Harding depo. at 101-102. Roberts was a part-time assistant principal at Pisgah
immediately before his appointment as interim principal at Section. Harding depo.
at 122-124; plaintiff exs. 7, 8, 17. Roberts’ highest certifications are a Class A in
Driver and Traffic Safety Education, and a Class A in Educational Administration.
Plaintiff ex. 18. According to Roberts, before working at Rosalie for eight years, he
was assistant principal and driver’s education teacher for three years while at
Woodville. Roberts depo. at 18.
Because the Stevenson Elementary principal position then came open and
Durham was transferred to that position, Roberts was then allowed to pick his own
assistant principal. Harding depo. at 63. Harding was involved in selecting who was
Other evidence reflects that Roberts chose Durham as his assistant principal after he was
appointed principal. See e.g, plaintiff ex. 14.
According to Roberts, while he was at Pisgah, Harding contacted him and asked if he
would be interesting in filling in as Principal at Section while Durham had hip replacement
surgery. Roberts depo. at 32.
interviewed for the assistant principal position and asserted that everyone who
applied for the position was interviewed. Harding depo. at 96.
C. Jobs applied for and covered by Plaintiff’s second EEOC Charge, August
2011, including claim of retaliation
Stevenson Elementary Principal (July 2011): The plaintiff was not
interviewed and Steve Durham was given the job. Plaintiff depo. at 99. Because this
position post-dates plaintiff’s first EEOC charge, she believes she did not get an
interview in retaliation for her charge. Id., at 105. According to Harding, because
Durham was transferred into the Stevenson Elementary Principal position from
Section High School, he did not conduct interviews. Harding depo. at 54. Durham
was just a poor fit at the high school because he was not a strong enough
disciplinarian, so he needed to move him. Harding depo. at 56-57. No committee
was formed for this principal opening because Harding had already decided to place
Durham in that job. Gant depo. at 22-23.
Section High School, Assistant Principal (August 2011): Because Durham
was moved to Stevenson, the assistant principal position at Section High School was
again available. The plaintiff did not get an interview. Plaintiff depo. at 109. Scotty
Overdear was hired for this position. Plaintiff ex. 44. Mr. Overdear holds an AA
certification as Educational Administrator, Grades P-12. Plaintiff ex. 45. He had no
Harding depo. at 173.
Roberts testified that he
interviewed people for the assistant principal position but he does not remember who
besides Mr. Overdear, who was hired, and Ms. Owens, were interviewed. Roberts
depo. at 41-42. He took notes, and had interview questions, but he has shredded all
of this, as well as deleted the computer file he made when he typed the interview
questions. Roberts depo. at 42-44. Roberts chose Overdear because he seemed like
he was a good disciplinarian. Id., at 45. Harding was involved in this decision.
Harding depo. at 175.
D. Jobs post-dating plaintiff’s August 2011 EEOC Charge:
Technical School Director (September 2011): The plaintiff applied for but
did not receive an interview for this position. Plaintiff depo. at 121. Shane Small was
hired to fill this job. Id. According to plaintiff, Mr. Small has a lower degree than
she does. Id., at 122. Mr. Small had previously been the Alternative School principal.
Plaintiff ex. 49. The Board discussed that Mr. Small was not qualified to be the
Technical School Director. Moore depo. at 78; Gant depo. at 39, 41. Small was the
only person interviewed for this position. Harding depo. at 178, 182. Harding
represented to the Board that Mr. Small was being placed in this position on an
interim basis, although he later became the permanent director. Gant depo. at 41-42.
He also continues to serve as the alternative school principal as well. Harding depo.
Special Education Coordinator (December 2011): The plaintiff applied for
but did not receive an interview for this position, which was filled by a male.
Plaintiff depo. at 127, 128. Harding interviewed only Kip Williamson for this job.
Harding depo. at 192, 194. Williamson was then recommended to the Board but the
Board would not hire him.9 Plaintiff depo. at 128. Robert Downey thereafter filled
the position. Plaintiff depo. at 129. Harding then interviewed only Robert Downey.
Harding depo. at 192, 195. He holds an AA certification for principal and a Class A
certification in special education, which Harding interpreted as meeting the job
requirement of five years in special education. Harding depo. at 203-204. The
plaintiff does not have a certificate in special education, but stated she worked with
special education children for 25 years, including writing their IEPs. Plaintiff depo.
at 130. John Lyda had concerns over the job description for this position being
changed to no longer require a Master’s in Administration. Lyda depo. at 35-36.
Mr. Williamson’s only position with defendant has been as Transportation Coordinator.
Plaintiff ex. 82 at exhibits 7 and 8. According to John Lyda, the Board had issues with the
procedure used by Harding to make this selection, not issues with Mr. Williamson himself. Lyda
depo. at 27, 33. See also depo. of Dana Moore at 27-28. However, Gant stated that when
Williamson was presented to the Board for approval, the Board felt there were other individuals
with more experience who were being overlooked, so the Board voted down Harding’s
recommendation. Gant depo. at 23-24.
Lyda and Moore had concerns over Harding changing job descriptions to fit particular
people he wanted in those positions. Lyda depo. at 35; Moore depo. at 29-30.
Transportation Supervisor (December 2011): The plaintiff applied for but
was not interviewed for this position. Plaintiff depo. at 133. John Kirby was hired
to fill the job. Plaintiff depo. at 135. Mr. Kirby was previously principal of Pisgah
High School and then Dutton Elementary School.10 Plaintiff ex. 58. His highest
certification is a Class A. Plaintiff ex. 58. Because a job requirement was a CDL,
Harding made arrangements for Kirby to get his CDL three days prior to the date he
was hired. Plaintiff depo. at 135-136; Harding depo. at 212. A Jackson County
Board of Education employee, Sharon Caperton, was asked to train Mr. Kirby for his
CDL test. Moore depo. at 99-100; Harding depo. at 214-215.
Harding alleged he only interviewed those who met either the administrative
experience requirement or the CDL requirement, and agreed Kirby did not have his
CDL when he interviewed for this job. Harding depo. at 207, 211. Harding
recommended Kirby be hired, then helped him obtain his CDL. Harding depo. at
213-214. The plaintiff had a CDL certification in the past, and could have renewed
it. Plaintiff depo. at 138. The School Board members discussed their concerns over
While Mr. Kirby was principal at Dutton, Lyda received phone calls from parents of
Dutton students complaining about Mr. Kirby’s performance. Lyda depo. at 43-44. Lyda
addressed these complaints with Harding, who stated he had heard no complaints about Kirby.
Id., at 44.
allowing Mr. Kirby to be hired or being told he would be hired, although he did not
meet the requirements. Lyda depo. at 41; Gant depo. at 25. According to Moore,
consideration of the job applicants was delayed and then Mr. Kirby obtained his CDL
before the Board met again. Moore depo. at 69-72. According to Gant, this was to
allow time for Kirby to get his CDL. Gant depo. at 26. According to Gant, Kirby did
not know what he was doing as a principal and does not know what he is doing in the
transportation job. Gant depo. at 26-27.
Bridgeport Elementary School Principal (February 2012): Plaintiff applied
for and received an interview for this position. Plaintiff depo. at 141. This position
was filled by a female, Lauria Merritt.11 Id., at 142. Merritt was principal at Paint
Rock Valley High School immediately prior to accepting this job. Plaintiff depo. at
143; plaintiff ex. 62, 64. John Lyda heard Ms. Merritt had performance problems at
Paint Rock, but was told by Harding that Ms. Merritt was whom the community and
the Board member from that district wanted. Lyda depo. at 45-46.
Dutton Elementary School Principal (February 2012): The plaintiff applied
for and interviewed for this position. Plaintiff depo. at 146. Craig Robbins was hired
for that job. Id., at 154. One of the interview committee members for this position
Ms. Merritt’s highest certification is Class AA, but not in administration. Plaintiff ex.
63; Harding depo. at 227. According to Harding, Scotty Overdear was the committee’s second
choice. Harding II depo. at 12.
informed the plaintiff that Robbins was not who was recommended for the job and
that the committee process “was a joke.”12 Plaintiff depo. at 154-156. The plaintiff
held more years of experience and a higher degree than Robbins. Plaintiff depo. at
156-157. However, Robbins had prior experience as principal at Flat Rock and
Bridgeport Middle School, and held an AA certification. Plaintiff ex. 66.
Flat Rock Elementary Principal (May 2012): Because Craig Robbins moved
to Dutton Elementary, this position became available. Harding II depo. at 12. The
plaintiff applied and interviewed with defendant Harding. Plaintiff depo. at 160.
Scotty Overdear was hired for this position.13 Plaintiff depo. at 162; plaintiff ex. 44.
He had one year administrative experience as an assistant principal at Section.
Harding depo. II at 16. John Lyda believed the committee tainted on this selection
because Harding picked an individual who in turn picked the other committee
members, and none of them had an interest in Flat Rock Elementary School. Lyda
depo. at 47-48.
Defendants supplied the affidavits of Joy Barnes, DeWade Fowler and Barry Pickett
(defendants Exhibits 97, 98, and 99) in support of Harding’s decision to recommend Craig
Robbins for this position. They contradict plaintiff’s testimony that the committee did not
support Robbins’ unanimously. Oddly, the committee members do not seem to remember when
they met. Ms. Barnes describes the interviews as occurring in “2012,” Mr. Fowler believes they
were in “approximately April 2012,” and Mr. Pickett recollects the same occurred in “the
summer of 2012.”
The defendants provided the affidavits of Steve Buckner and Imogene Tidmore in
support of the decision to hire Scotty Overdear as principal of Flat Rock Elementary (defendants’
exhibits 104 and 105). The court notes only two of the committee members provided affidavits
concerning the committee reaching its decision.
Section High School Assistant Principal (May 2012): The plaintiff applied
for this position, which was created when Scotty Overdear was hired to be the
principal at Flat Rock. Roberts depo. at 45. She was again interviewed by Gene
Roberts. Plaintiff depo. at 165; Roberts depo. at 46. Michael Wilborn was hired.
Plaintiff depo. at 166. The plaintiff believes she was more qualified because she had
more years of experience and a higher degree that Wilborn. Plaintiff depo. at 166167. Evidence reflects Mr. Wilborn held a Class A certification and taught science
prior to being hired as the Section High School Assistant Principal. Plaintiff ex. 77.
Roberts knew Wilborn was a coach and was looking for a basketball coach, although
that was not part of the assistant principal job description. Roberts depo. at 46-47;
Harding II depo. at 39, 45. Roberts was aware that plaintiff had coached junior high
basketball too, but he chose Mr. Wilborn because he “needed a basketball coach and
he had been coaching the girl’s basketball for several years and he had – very good
with it.” Roberts depo. at 47. Additionally, he knew Mr. Wilborn had prior
administrative duties, specifically, he did the attendance at North Sand Mountain. Id.,
at 47-48. Harding explained that Wilborn “probably did some assistant principal
duties. He probably had some time scheduled for that, but probably didn’t receive
any compensation.” Harding II depo. at 32. He then agreed that Wright, and not
Wilborn, was actually North Sand Mountain’s assistant principal during the time in
question. Harding II depo. at 33. Roberts had no idea if plaintiff had prior
administrative duties, and did not ask. Roberts depo. at 48.
In the summers of 2010 and in 2011 the plaintiff met with defendant Harding
and asked why she was not chosen for any of the jobs. Plaintiff depo. at 110, 114.
He told her that the ones he chose were more qualified than she was. Id., at 110-111.
She told him she thought it was because she was female and he said that was not why.
Plaintiff depo. at 111, 119-120.
Harding also told her she needed to get
recommended by a committee. Id., at 115, 119-120. However, the plaintiff was told
by Sheila Cornelison, the AEA representative, that the committees recommended
whomever Harding told them to. Plaintiff depo. at 116. Members of the Board of
Education also believed the committee system was stacked to hire whomever the
Superintendent wanted hired. Moore depo. at 64. The committee system has been
discussed in Board meetings and several members of the board have expressed their
dissatisfaction with it. Gant depo. at 16. Gant believes the system is a “farce,”
because the people picked for those committees are people favorable to the applicant
that is wanted. Gant depo. at 16-17. Selection for a committee is based on who will
recommend the “right” person. Gant depo. at 47. The Board also told Harding he
should not tell potential applicants not to bother applying for a position, to which
Harding responded he would continue doing things the way he wanted. Gant depo.
The plaintiff heard from Ms. Cornelison that Harding did not think any female
would make a good principal and that Harding referred to her as a “bitch” in
executive session. Plaintiff depo. at 123. Ms. Peek, secretary to Mr. Harding, also
heard Harding refer to the plaintiff as a “bitch,” but only in the context of the
lawsuit.14 Peek depo., at 12-13, 40, 45. Similarly, Dana Moore heard Mr. Harding
refer to the plaintiff as a “bitch,” but believes they were discussing plaintiff’s lawsuit.
Moore depo. at 73. Moore also states that there is a question, not just from Harding,
as to whether women are strong enough to deal with physical discipline as
administrators. Moore depo. at 117-118. The Board has also discussed that men are
not compassionate enough. Moore depo. at 119. However, Moore has also told
Harding that plaintiff would make a good administrator. Id. at 118.
Cecil Gant stated that he heard Harding say “that no way in hell would he give
Lynn Owens a job. And maybe he called her a bitch. I’m not sure about that.” Gant
depo. at 14. He believes this was a general statement and not in reference to a
particular job, but is sure it was prior to the time she filed her EEOC charge. Gant
depo. at 14-15. Gant personally believes the plaintiff’s character is impeccable and
Ms. Peek is Mark Guffey’s sister. Guffey depo. at 20.
that she would make a good administrator. Gant depo. at 51. Harding contends that
the plaintiff lacks the demeanor and personality attributes for a principal or assistant
principal. Harding II depo. at 86-93, 101-102.
Ms. Cornelison has heard Mr. Harding state he does not want females in
administration.15 Affidavit of Cornelison, submitted as plaintiff ex. 83, at ¶ 5.
Harding referred to women as “too emotional and hardnosed” and added that
“females don’t have the personality and fortitude to be principals.” Id. Harding has
not promoted a single female into an administrative position since he became
superintendent. Harding II depo. at 124; Cornelison affidavit, ¶ 7. Both Rhonda
Wheeler and Lauria Merritt were already in principal or assistant principal roles prior
to Mr. Harding’s tenure beginning. Id. Harding is not aware of any female
employees given assistant principal duties. Harding II depo. at 64. Ms. Merritt, Ms.
Wheeler and Dr. Brooks are the only three female principals in the Jackson County
School System. Harding II depo. at 83. There are no female assistant principals. Id.,
at 83. Jackson County has a total of seven assistant principal positions and 18
principal positions. Harding depo. at 84.
Since filing her EEOC charge, the plaintiff thinks her supervisor, Ms. Wheeler,
has discriminated against her by removing her from the school improvement team and
Harding states this a lie. Harding depo. at 105.
from the committee which seeks solutions for at risk children. Plaintiff depo. at 171172. Because of her removal from this team and committee, the plaintiff has no
administrative experience beyond 2010. Id., at 172. At the same time, she was
removed from the accreditation team. Id., at 174.
II. STANDARD FOR EVALUATING SUMMARY JUDGMENT
A moving party is entitled to summary judgment if there is no genuine issue of
material fact, leaving final judgment to be decided as a matter of law. See Federal
Rule of Civil Procedure 56; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587, 106 S.Ct. 1348, 1355-56 (1986). An issue is “material” if it is a legal
element of the claim under the applicable substantive law which might affect the
outcome of the case. It is “genuine” if the record taken as a whole could lead a
rational trier of fact to find for the nonmoving party. Allen v. Tyson Foods, Inc., 121
F.3d 642, 646 (11th Cir.1997).
The facts, and any reasonable inferences therefrom, are to be viewed in the
light most favorable to the non-moving party, with any doubt resolved in the
nonmovant’s favor. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 158, 90 S.Ct.
1598, 1609 (1970). Once met by the moving party, however, the burden shifts to the
non-moving party to come forward with evidence to establish each element essential
to that party’s case sufficient to sustain a jury verdict. See Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Earley v. Champion Int’l Corp., 907
F.2d 1077, 1080 (11th Cir.1990).
A party opposing a properly submitted motion for summary judgment may not
rest upon mere allegations or denials of his pleadings, but must set forth specific facts
showing that there is a genuine issue for trial. Eberhardt v. Waters, 901 F.2d 1578,
1580 (11th Cir.1990). In addition, the non-moving party's evidence on rebuttal must
be significantly probative and not based on mere assertion or be merely colorable.
See Rule 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct.
2505, 2511 (1986). Speculation does not create a genuine issue of fact. Cordoba v.
Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir.2005).
The court must consider the evidence in the light most favorable to the plaintiff
and may not make credibility determinations nor weigh the parties’ evidence.
Frederick v. Sprint/United Management Co. 246 F.3d 1305, 1311 (11th Cir.2001);
Stewart v. Booker T. Washington Insurance., 232 F.3d 844, 848 (11th Cir.2000).
III. Legal Analysis
A plaintiff may prevail on an employment discrimination claim by either
proving that intentional discrimination motivated the employer or producing
sufficient evidence to allow a rational trier of fact to disbelieve the legitimate reason
proffered by the employer, which permits, but does not compel, the trier of fact to
find illegal discrimination. Wilson v. B/E Aerospace, Inc,. 376 F.3d 1079, 1088 (11th
Cir. 2004), citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147-48,
120 S.Ct. 2097, 2108-09, 147 L.Ed.2d 105 (2000).
Plaintiff asserts that she did not receive various promotions due to gender
discrimination and retaliation for filing EEOC charges. Considering the evidence in
the light most favorable to the plaintiff, and without judging credibility, genuine
issues of fact remain in this case. The plaintiff’s and defendants’ evidentiary
submissions directly contradict each other.16 Evidence of direct discrimination is
present. Although defendants argue that there is no such evidence (defendants’ brief
at 8), Ms. Cornelius has provided a sworn statement that Harding called the plaintiff
a derogatory name and stated women made poor principals. As stated above, several
of the Board of Education members also heard Mr. Harding make such comments.
While defendants challenge the credibility and weight to which such statements are
entitled, the court may make no such determinations at the summary judgment stage.
Defendants’ reply to plaintiff’s response (doc. 44) confirms the level of factual dispute
present before the court. Defendants devote their entire 10 page response to disputing what the
plaintiff asserts the evidence to show. For example, defendants state that “Mr. Harding testified
that the principals, not Mr. Harding, set up interviews and schedule appointments...”
Defendant’s reply, at 1. However, the court has before it the deposition of Mark Guffey, in
which Mr. Guffey states he was told by Mr. Harding both that he was creating a second assistant
principal position at Pisgah, and that the position would be filled by Gene Roberts.
Circumstantial evidence also exists which creates genuine issues of fact. For
instance, the evidence reflects that 14 out of the 15 positions referenced were filled
by men.17 Evidence is before the court that of the two positions which were filled by
women, one was already in the assistant principal position before Harding became
superintendent, and for the other one there is evidence that a state senator intervened
and suggested to Harding that the particular female in question be hired.
Additionally, the plaintiff has provided evidence that for most of the positions in
question, she was either more qualified, had more experience, or both, than the
candidate actually selected. Of note, none of the affidavits provided by members of
the various ad hoc committees even mention relative qualifications, such as education
and experience, of most of the candidates. Because evidence material to the case
directly contradicts other evidence, genuine issues of material fact remain in this case,
which are proper for consideration by a trier of fact.
The court next considers each of the defendants’ specific arguments in turn.
The defendants assert that 14 out of 16 positions were filled by men. While the
percentage difference is minimal, the court notes the difference arises from defendants’ inclusion
of the May 2010 Rosalie Elementary School principal position, which was filled by Rhonda
Wheeler. The court has not included this job as the plaintiff specifically stated she was not suing
over this position.
A. Whether any positions at issue are barred as more than 180 days prior to
plaintiff’s July 2011 EEOC charge:
The defendants assert that several of the positions raised by plaintiff were more
than 180 days prior to plaintiff’s first EEOC charge, and therefore barred under Title
VII. Defendants’ brief at 6. The defendants are correct, however the plaintiff has
also brought these same claims pursuant to § 1983, which has no such prerequisite
to suit.18 As such, the plaintiff may proceed with her claims concerning her lack of
selection for the Skyline High School position, two assistant principal positions at
Pisgah High School, and an assistant principal position at North Jackson High
B. Lack of Prima Facie Evidence of Discrimination
The defendants also argue that the evidence does not support a prima facie case
of discrimination for the transportation supervisor, special education coordinator,
Bridgeport Elementary Principal and Rosalie Elementary Principal. Defendants’
Unlike Title VII, the ADA, and the ADEA, 42 U.S.C. §§ 1983 does not include specific
statutes of limitations periods. The proper limitations period for claims brought under § 1983 is
the personal injury limitations period of the forum state. Rozar v. Mullis, 85 F.3d 556, 561 (11th
Cir.1996). In Alabama, that time is two years. See Ala.Code § 6-2-38 (2004); Lufkin v.
McCallum, 956 F.2d 1104 (11th Cir.1992). Plaintiff filed her complaint on May 29, 2012,
making all of her claims timely.
The only other position which falls in this category is the principal position at Rosalie
Elementary, which was filled by a woman and which plaintiff has specifically stated she is not
including in claims for discrimination.
brief, at 13. As noted previously, the plaintiff has stated she is not pursuing a claim
for the Rosalie position.
As to the other three jobs, the court considers the “failure to promote” prima
facie analysis, as adopted from the oft-repeated McDonnell Douglas Corp. v. Green
methods of proof, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In a
“failure to promote case,” the plaintiff meets her prima facie burden of proof by
establishing that (1) she is a member of a protected class; (2) she was qualified for the
position for which she applied; (3) she was rejected for the position; and (4) the
position was filled with a person from outside the plaintiff’s protected class. Vessels
v. Atlanta Independent School System, 408 F.3d 763, 768 (11th Cir.2005); citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d
The court notes the plaintiff meets this standard for every one of the positions
in question except for the Bridgeport Elementary position, which was filled by a
female, Lauria Merritt. 20 Although the defendants assert plaintiff was not qualified
for the Transportation Supervisor position, the plaintiff has provided evidence that
she did meet the qualifications except for possession of a CDL. She has further
Although this position was filled by a female, the court notes the same post-dates
plaintiff’s EEOC charge and the plaintiff contends she was not selected for this position because
provided evidence that Mr. Kirby was allowed time to obtain a current CDL, while
plaintiff was not, although she had previously held a CDL. Likewise, with the
Special Education Coordinator position, the plaintiff has provided evidence that she
was as qualified as the male originally selected by Harding, and possibly the male
selected the second time by Mr. Harding, after the Board refused to hire his first
selection. As set out in this opinion, the court also finds the evidence before it to be
so full of factual inconsistencies, implausabilities and contradictions that the court
cannot find any credence in the defendants’ proffered legitimate. non-discriminatory
reasons for its actions. See Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th
C. Defendants’ Non-Discriminatory Reasons
The defendants argue that the committee system is evidence of nondiscriminatory reasons for the plaintiff’s non-selection. Defendants’ brief at 16.
However, the court has evidence before it that the committees selected individuals
pre-determined by Harding. Additionally, even if the court could find legitimate,
non-discriminatory reasons for the defendants’ repeated selections of men over the
plaintiff, the same repeated selection of less qualified individuals rebuts any nondiscriminatory basis. The committees simply do not suffice as reasons that “might
motivate a reasonable employer.” See e.g., Chapman v. AI Transport, 229 F.3d 1012,
1030 (11th Cir.2001).
While defendants also assert Harding’s decision to transfer Durham to
Stevenson Elementary was within Harding’s authority, and that there is no evidence
the same was motivated by gender bias, the court finds the cumulative weight of the
evidence, viewed in the light most favorable to the plaintiff, supports an inference
that the same handful of males were shuffled between vacancies to the exclusion of
qualified female applicants, such as the plaintiff. There is ample evidence from
which a reasonable fact finder could conclude that the legitimate reasons given by the
employer were not the true motivations, but a pretext for discrimination. See Ash v.
Tyson Foods, Inc., 664 F.3d 883, 892 (11th Cir.2011); Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). See also
Cooper v. Southern Co., 390 F.3d 695, 725 (11th Cir.2004); Silvera v. Orange County
Sch. Bd., 244 F.3d 1253, 1258 (11th Cir.2001); citing Combs, 106 F.3d at 1538.
To survive a summary judgment motion for a claim of retaliation, the plaintiff
must show that she (1) engaged in Title VII protected activity; (2) adverse
employment actions occurred; and (3) causal connections between the protected
activity and the adverse employment actions exist. Brochu v. City of Riviera Beach,
304 F.3d 1144, 1155 (11th Cir.2002); Sullivan v. National Railroad Passenger Corp.,
170 F.3d 1056, 1059 (11th Cir.1999).
The defendants argue that the plaintiff cannot prevail on her claims of
retaliation because she cannot show that the decision-maker was aware of her
protected activity. Defendant’s brief at 32. However, to reach such a conclusion, the
court necessarily has to find that the committees functioned independently of
Harding, who most certainly was aware of plaintiff’s protected activity. As stated
above, when considered in the light most favorable to the plaintiff, the evidence
supports a finding that the committees were not unbiased or independent, but rather
a means for Harding to have his selection for a position secured.21
Because the plaintiff filed her first charge July 5, 2011, she may proceed on her
retaliation claims for positions filled after this date.22 The court has before it evidence
that, after plaintiff filed her EEOC charge, she was called derogatory names by
Harding even contradicts himself. After informing the EEOC that the plaintiff was not
promoted because she lacked “the demeanor and personality attributes necessary for the
leadership responsibility of a principal or assistant principal,” Harding continued to schedule her
for interviews so he would not be accused of retaliation. Harding II depo. at 103. However,
Harding also testified that if the plaintiff could have gotten a committee to recommend her, he
would have put her in a principal or assistant principal position, in spite of her perceived lack of
leadership skills. Harding depo. at 102-104.
Although the defendants’ brief the Eleventh Circuit standards for the amount of time in
which an adverse employment action can be “causally related” to a protected activity, in this case
there is evidence that Harding stated to multiple individuals that he would “never” allow plaintiff
to be promoted because she was a “bitch” for filing a lawsuit.
Harding, and further that Harding made references to her never getting a promotion.
D. Evidence of Violation of Plaintiff’s Equal Protection Rights:
“When section 1983 is used as a parallel remedy for violation of ... Title VII,
the elements of the two causes of action are the same.” Snider v. Jefferson State
Community College, 344 F.3d 1325, 1328 n. 4 (11th Cir.2003). The defendants argue
that the plaintiff can show no proof of gender discrimination because of its use of the
committee system. Defendants’ brief at 37. However, as discussed multiple times
above, the court has evidence before it that the committee system was tainted.
Additionally, the fact that 14 out of 15 of the positions in question were filled by men
lends support to evidence of a permanent, well-settled custom of gender
discrimination. As stated above, the plaintiff sets forth a prima facie case of
discrimination for each of the positions in question, which defendants’ legitimate,
non-discriminatory reasons fail to rebut.
E. Whether Harding is Entitled to Qualified Immunity
Defendants argue that even if plaintiff is entitled to proceed on her claims
under § 1983, Harding is entitled to qualified immunity. Defendants’ brief at 38.
Qualified immunity protects government officials performing discretionary functions
from liability in their individual capacity if their conduct “does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known.” Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 2515, 153 L.Ed.2d 666
(2002). The Eleventh Circuit has specifically explained that
[a] denial of qualified immunity at summary judgment necessarily
involves two determinations: 1) that on the facts before the court, taken
in the light most favorable to the plaintiff, a reasonable jury could find
that the defendant engaged in certain conduct, and 2) that the conduct
violated “clearly established law” such that a reasonable person in the
defendant's position would have had notice that his actions were
Mencer v. Hammonds, 134 F.3d 1066, 1070 (11th Cir.1998) (citing Johnson v. Clifton,
74 F.3d 1087, 1091 (11th Cir.1996)). Here, if a reasonable jury believes the evidence
that Harding believed women make poor administrators, and therefore refused to
promote plaintiff into principal, assistant principal, or other administrative positions,
a jury could very reasonably find that Harding’s behavior was clearly and obviously
in violation of existing federal law. See e.g., Williams v. Board of Regents of
University System of Georgia, 477 F.3d 1282, 1300 (11th Cir.2007). See also Davis
v. Passman, 442 U.S. 228, 235 (1979) (“The equal protection component of the Due
Process Clause thus confers on petitioner a federal constitutional right to be free from
gender discrimination.”); Snider v. Jefferson State Cmty College, 344 F.3d 1325,
1331 (11th Cir.2003) (Since at least 1979 it has been established that the Equal
Protection Clause provides a constitutional right to be free from unlawful sex
discrimination in public employment.); Cross v. Alabama, 49 F.3d 1490, 1507 (11th
Cir.1995) (there is a constitutional right to be free from unlawful sex discrimination);
Defendants also argue that the plaintiff cannot prove a discriminatory motive
on the part of Harding. Defendants’ brief at 40. To establish a violation of the Equal
Protection Clause, a plaintiff must prove discriminatory motive or purpose. Whiting
v. Jackson State Univ., 616 F.2d 116, 122 (5th Cir.1980); see also Cross, 49 F.3d at
1507–1508. The court in Whiting held that “such intent should be inferred in the same
manner as [the Supreme Court] said it is inferred under [Title VII].” Whiting, 616
F.2d at 121; Cross, 49 F.3d at 1507–1508. Thus, in cases in which a plaintiff asserts
a claim under § 1983 as a parallel basis for relief for employment discrimination,
along with a Title VII claim, the elements required to establish the § 1983 claim
mirror those required for the Title VII claim. Whiting, 616 F.2d at 121; Cross, 49 F.3d
at 1508; Hardin v. Stynchcomb, 691 F.2d 1364, 1369 n. 16 (11th Cir.1982)
(“Although overt discrimination is rare in this day of sophisticated employers
Stynchcombe virtually announces that he did not consider women for the seven
Deputy Sheriff I positions. Thus Hardin’s prima facie case of discriminatory
treatment is established.”).
Having considered the foregoing in relation to the facts of this case, the court
finds the plaintiff has brought forth evidence of a discriminatory motive of the part
of Harding, as set forth in detail above. The evidence presented is sufficient to allow
plaintiff’s § 1983 claims to proceed to a jury.
The court having considered the foregoing, and finding that genuine issues of
material fact exist, the defendants’ motion for summary judgment shall be DENIED
by separate Order.23 This case remains set for trial and pretrial conference.
DONE and ORDERED this the 25th day of June, 2013.
INGE PRYTZ JOHNSON
SENIOR U.S. DISTRICT JUDGE
As stated herein, the court is of the opinion that the plaintiff’s claims concerning the
Principal position at Rosalie Elementary is barred. Plaintiff concedes the same. See plaintiff’s
response (doc. 41) at 26, n.12. Similarly, the plaintiff concedes she cannot prevail on her sex
discrimination claim concerning the principal position at Bridgeport Elementary, but asserts she
was denied the position in retaliation for her EEOC charge.
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