Bragg v. Wardynski et al

Filing 60

MEMORANDUM OPINION AND ORDER - Based on the foregoing, the Court DENIES the Boards motion to strike (Doc. 59) and GRANTS the Boards motion for summary judgment (Doc. 45). The Court will enter a separate judgment in favor of the Board. Signed by Judge Madeline Hughes Haikala on 9/26/2018. (KEK)

FILED
2018 Sep-26 PM 12:29
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
RICHARD BRAGG,

}
}
Plaintiff,
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}
v.
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}
HUNTSVILLE CITY BOARD OF }
}
EDUCATION,
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}
Defendant.

Case No.: 5:16-cv-00030-MHH

MEMORANDUM OPINION AND ORDER
Plaintiff Richard Bragg alleges that defendant Huntsville City Board of
Education forced him to retire because of his age in violation of the Age
Discrimination in Employment Act (ADEA). Pursuant to Rule 56 of the Federal
Rules of Civil Procedure, the Board asks the Court to enter summary judgment in
in its favor. (Doc. 45). The Board also asks the Court to strike portions of Mr.
Bragg’s responsive brief and affidavit. (Doc. 59). For the following reasons, the
Court denies the Board’s motion to strike and enters summary judgment for the
Board.
I.

SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). To demonstrate that there is a genuine

dispute as to a material fact that precludes summary judgment, a party opposing a
motion for summary judgment must cite “to particular parts of materials in the
record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ.
P. 56(c)(1)(A).

“‘Genuine disputes [of material fact] are those in which the

evidence is such that a reasonable jury could return a verdict for the non-movant.
For factual issues to be considered genuine, they must have a real basis in the
record.’”

Evans v. Books-A-Million, 762 F.3d 1288, 1294 (11th Cir. 2014)

(quoting Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996)).
When considering a motion for summary judgment, the Court must view the
evidence in the record in the light most favorable to the non-moving party and
draw reasonable inferences in favor of the non-moving party. White v. Beltram
Edge Tool Supply, Inc., 789 F.3d 1188, 1191 (11th Cir. 2015). Even if the Court
doubts the veracity of the evidence, the Court cannot make credibility
determinations of the evidence. Feliciano v. City of Miami Beach, 707 F.3d 1244,
1252 (11th Cir. 2013) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986)).
II.

FACTUAL AND PROCEDURAL BACKGROUND
Mr. Bragg worked for the Board as a physical education aide at Montview
2

Elementary School from September 1996 until he retired in February 2015. (Doc.
55-1, p. 2, ¶¶ 3-4). Mr. Bragg assisted in P.E., monitored students before and
during breakfast, restrained children when necessary to prevent fights, and
participated in safety patrol. (Doc. 47-1, p. 9).
Mr. Bragg was 60 years old and eligible for benefits when he retired after
the Board’s then-superintendent, Dr. Casey Wardynski, proposed that the Board
terminate Mr. Bragg’s employment. (Doc. 55-1, p. 3, ¶ 7). Three events in 2014
formed the basis for the proposed termination. Consistent with the summary
judgment standard, the Court will present the facts of these and subsequent events
in the light most favorable to Mr. Bragg and draw reasonable inferences in his
favor.
A.

The February 18, 2014 Accusations

On February 18, 2014, Towana Davis, the principal of Montview
Elementary, received notice that a group of fifth grade students had accused Mr.
Bragg of inappropriate conduct. (Doc. 47-1, pp. 10, 66). The students accused Mr.
Bragg of taunting students; standing in the doorway of the girls’ restroom and
making snide remarks; threatening students; insulting students; invading students’
personal space; bullying students; yelling at students; inappropriately touching
students; and inappropriately grabbing students. (Doc. 47-1, p. 66). Mr. Bragg
testified that one of the accusers, a fifth grade student, was a “ring leader[] going
3

around and getting [her] friends to say things.” (Doc. 47-1, p. 10). An accusing
student’s parent told the student to not say things just because her friends were
saying them. (Doc. 47-1, p. 10).
Ms. Davis “spent the day investigating the accusations.” (Doc. 47-1, p. 64).
She first met with the students to hear their complaint. (Doc. 47-1, p. 65). Then
she met with Mr. Bragg. (Doc. 47-1, p. 65). At the meeting, Mr. Bragg denied the
accusations. (Doc. 47-1, pp. 10-11). Ms. Davis instructed Mr. Bragg to be careful
and to keep his hands off students, and she asked him to prepare a written response
to the students’ accusations. (Doc. 47-1, p. 12, tr. p. 42; Doc. 47-1, p. 65). Mr.
Bragg indicated that it would be difficult to never touch a student because he was
“the restraint person at the school,” meaning he was trained by the school to
restrain students from fighting. (Doc. 47-1, p. 12, tr. p. 42). Even after the
allegations of inappropriate touching, school officials still called Mr. Bragg to
“handle children that were out of line in classes or in the hall.” (Doc. 47-1, p. 12,
tr. p. 42).
After Ms. Davis met with Mr. Bragg, she met with a physical education
teacher, Mark Wilkins, and she again “met with the students collectively and gave
them an opportunity to tell their side of the story” and “share any further
information.” (Doc. 47-1, p. 65).
Mr. Bragg submitted his written response to the allegations. He stated:
4

Taunting of students []has never happened. They talk back to other
adults as well as myself. I correct them, but they talk back or make
remarks. I have only stood outside the bathrooms[] when I have been
told to because they are misbehaving. I have never in my 18 years
threatened a student, other than saying I will call a parent or tell
someone. Insulting students has never happened. I have told children
that in [the] past kids did not talk back or disrespect any adults.
Invading personal space only has happened when I had to get in a
child[’s] face to get attention.
Bullying has not happened-yelling is my last thing I turn to. Yelling
is when class is loud.
Touching has NEVER happened to any children [in 18 years, and
these accusations have never happened].
I would be more than glad to talk []to any student and their parents.
[I am] a strong disciplinarian, but [everything] is false accusations.
(Doc. 47-1, p. 67).
At his deposition, when asked about the February 2014 allegations, Mr.
Bragg testified that he never taunted, threatened, insulted, bullied, inappropriately
touched or grabbed, or invaded the personal space of students. (Doc. 47-1, pp. 1011). Mr. Bragg testified that he stood outside the girls’ bathroom only because
some girls had been fighting in the bathroom, and Ms. Davis asked him and
another teacher, Amy Clark, to stand outside the bathroom and make sure the
students got to class without fighting. (Doc. 47-1, pp. 9-10). Mr. Bragg testified
that he never yelled at a student unless he had to “get over the noise . . . in a gym”
and acknowledged that his voice might come across as harsh because he is a coach.
5

(Doc. 47-1, p. 11). Mr. Bragg testified that he grabbed students only when he had
to restrain a student from a fight or “anything where a child had to be restrained.”
(Doc. 47-1, p. 11).
Mr. Bragg suspected that the students might have told “untruths” about him
because Mr. Bragg previously had disciplined the students. (Doc. 47-1, p. 15). As
an aide, Mr. Bragg sometimes had to monitor classes, during which he had to tell
students to pay attention to the teacher. (Doc. 47-1, p. 15). He also had to
supervise students in the morning before the cafeteria opened and make sure things
ran smoothly during breakfast. (Doc. 47-1, p. 16). According to Mr. Bragg, the
students who complained about him all had past behavior problems. (Doc. 47-1, p.
15, tr. p. 56). The same students had also accused Ms. Clark of being mean to
them and calling them names. (Doc. 47-1, p. 16, tr. p. 57).
At the end of the day, Ms. Davis sent a letter to Helen Scott, the Board’s
director of instruction. (Doc. 47-1, p. 64). In the letter, Ms. Davis questioned the
credibility of the students’ accusations:
I wanted to let you know that I have spent the day investigating the
accusations made by my 5th grade students against Mr. Richard Bragg
(PE instructional aide). Not only did I speak with the students, but I
also held conversations with Mr. Mark Wilkins and Mr. Richard
Bragg. I felt compelled to share with you my personal feelings
regarding the entire situation.
Although some of the minor
accusations may contain an “ounce” of truth, it is accurate to say that
the majority of the students making the accusations have previously
voiced their strong dislike for Coach Bragg. Additionally, these
students have a strong dislike for any authority figure who attempts to
6

instill respectful behavior. Also, it should also be noted that these
students [have] chronic behavior problems.
(Doc. 47-1, p. 64). Ms. Davis testified that she wrote this “because the students
often complained about him for minor -- whatever. And so I just wanted [Ms.
Scott] to make sure that when she received all of this information that she knew
that there was a possibility that some things may have been said because they did
not like him.” (Doc. 47-3, p. 9).
Mr. Bragg feels that Ms. Davis’s letter “stated basically that [he] didn’t do
anything.” (Doc. 47-1, p. 12, tr. p. 41). Dr. Wardynski testified that the letter
shows Ms. Davis “discounted [the students’] opinions.” (Doc. 47-2, p. 13). No
formal reprimand or disciplinary action came of the allegations.
B.

The April 1, 2014 Incident

On April 1, 2014, while Mr. Bragg was walking through the lunchroom, he
saw a female student about to start a fight with a young man. (Doc. 47-1, pp. 13,
68). Mr. Bragg “kind of tugged on her hood” and told her to turn around. (Doc.
47-1, p. 13). The student said, “get your damn hands off me.” (Doc. 47-1, p. 13,
tr. p. 48). Mr. Bragg told her, “wait a minute. I’m an adult. All I’m trying to do is
help you stay out of trouble.” (Doc. 47-1, p. 13, tr. p. 48). Mr. Bragg then told the
student’s teacher to watch her because she was about to get into a fight. (Doc. 471, p. 13, tr. p. 48).
Soon afterwards, the student met with Ms. Davis and wrote a statement
7

about the incident. (Doc. 47-1, pp. 14, 69). The student wrote that Mr. Bragg
grabbed her hoodie, put his hand on her stomach, grabbed her arm tightly, pulled
her to his pants, and would not let go of her when she tried to pull herself up.
(Doc. 47-1, p. 69). Ms. Davis took notes of a conversation she had with the
student later that day. (Doc. 47-3, p. 11, tr. p. 40). Ms. Davis wrote that the
student said that she felt uncomfortable and that Mr. Bragg pulled her hoodie,
grabbed her arm and stomach, and pulled her towards his “private area.” (Doc. 471, p. 69).
Ms. Davis spoke with the student’s mother about the incident. (Doc. 47-1,
pp. 14, 69). Ms. Davis wrote that the student’s mother said that the student
complained about Mr. Bragg all year for screaming and yelling for no reason and
that the student was scared of Mr. Bragg and afraid of repercussions for reporting
him. (Doc. 47-1, p. 69).
Mr. Bragg met with Ms. Davis and denied that he rubbed the student against
his groin. (Doc. 47-1, p. 14, tr. p. 49). Mr. Bragg wrote a statement about the
incident:
. . . I could tell she was mad, so I gently tugged on her jacket. She
jerked and said “get your damn hands off of me.” At that time I
reached and touched her arm and told her wait a minute you are acting
up with the wrong person. I am just trying to keep you out of trouble.
She continued at which I tried to tell her the wrong child will knock
her out. She used to be a member of school safety patrol. She
changed this year.
8

Ms. Donna Walker and I have tried to speak to her and she has
said we don’t know her, because she is bad.
I have never hurt her at any time and I was trying to keep her
out of trouble.
(Doc. 47-1, p. 68).
The student was one of Mr. Bragg’s accusers in February 2014. (Doc. 47-1,
p. 13, tr. p. 47). According to Mr. Bragg, the student previously made up a story
about Ms. Walker. (Doc. 47-1, p. 15, tr. p. 55).
At a meeting on April 3, 2014, Ms. Davis told Mr. Bragg to be careful about
touching children and invading their private space. (Doc. 47-1, p. 14, tr. p. 52).
Mr. Bragg told Ms. Davis that he would not touch children in a restraining manner,
but after the meeting, he still was called on to discipline misbehaving students.
(Doc. 47-1, p. 14, tr. p. 52).
At the meeting, Ms. Davis gave Mr. Bragg a formal reprimand memo. (Doc.
47-1, pp. 14, 56). In the memo, Ms. Davis mentioned that she informed Mr. Bragg
that the February 2014 allegations were serious claims that may warrant district
level disciplinary actions. (Doc. 47-1, p. 56). Ms. Davis stated that she was
“greatly concerned that these accusations have reoccurred since our last meeting. I
was very direct when stating that you must maintain a ‘hands off approach’ with
respect to all children.” (Doc. 47-1, p. 56). Ms. Davis reprimanded Mr. Bragg for
“fail[ing] to adhere to directives from this office.” (Doc. 47-1, p. 56).
9

On April 15, 2014, Mr. Bragg sent to Ms. Davis and the Board’s compliance
director, Belinda Williams, a response to the reprimand because he felt “that some
facts should be addressed.” (Doc. 47-1, p. 72). In the letter, Mr. Bragg stated:
. . . I have tried to help our students excel in class as well as in life.
In return all I have asked for is children to have respect for ALL
adults and to behave in an age appropriate manner.
As to the accusations on February 18th and April 1st, it has been
proven that I did none of the things I was accused of. I am strict in
my methods as I have been for 18 years but have always had the
students’ best interests at heart. These past two years we have seen,
by far, the worst behavior out of our students. I am constantly cursed
at, told to shut up, talked back to and the list could go on. I feel most
of the children want some form of discipline because they lack it in
the home. There is no accountability for the parents.
In my opinion having a reprimand put in my file is unjust because the
accusations were not substantiated. I have always followed the
directives and procedures. I will however maintain a “hands off
approach” for the rest of my tenure.
(Doc. 47-1, pp. 70-72).
C.

The August 7, 2014 Incident

On August 7, 2014, a surveillance video camera captured an incident
involving Mr. Bragg. The incident occurred a fair distance from the camera. The
footage is blurry and is not accompanied by audio. 1
The video shows Mr. Bragg walking in a hall after P.E. class. Several
1

The Board placed in the record an unedited video of the incident, (Doc. 47-1, Ex. 6),
and four edited videos of the incident that blurred the faces of the other students in the hallway
and zoomed in to focus on the incident. (Doc. 47-12, Ex. 2). Keith Ward, the director of
communications and ETV for the Board, produced the edited videos only for the present
litigation and provided the videos only to the Board’s attorney. (Doc. 47-12, p. 5, ¶ 11).
10

students are lined up against the wall in the hallway and a few students are waiting
in line for the water fountain. (Doc. 47-1, Ex. 6; see Doc. 55-2, pp. 2-15). A
teacher, Irene Moore-Smith, stood beside the water fountain and witnessed the
incident. (Doc. 47-1, Ex. 6; Doc. 47-4, p. 6; see Doc. 55-2, pp. 2-15). Mr. Bragg
approached a female student standing in line for the water fountain from behind.
(Doc. 47-12, Ex. 2, Video 4, 00:06-00:17).2

Mr. Bragg placed his hands

somewhere near the student’s neck or shoulders -- the video does not show exactly
where or how Mr. Bragg positioned his hands. (Doc. 47-12, Ex. 2, Video 4, 00:1800:19). Mr. Bragg bent down slightly. (Doc. 47-12, Ex. 2, Video 4, 00:21-00:22).
The student placed her hands somewhere near Mr. Bragg’s arms or hands -- the
video does not show exactly where she put her hands. (Doc. 47-12, Ex. 2, Video 4,
00:21). Mr. Bragg lifted the student a short distance off of the ground (the bottom
of the student’s shoes reached just above Mr. Bragg’s ankles) and set her back
down approximately one second later. (Doc. 47-12, Ex. 2, Video 4, 00:22-00:23).
Mr. Bragg pulled the student in closer to him and hugged her from behind. (Doc.
47-12, Ex. 2, Video 4, 00:24). Mr. Bragg briefly leaned the student from side to
side. (Doc. 47-12, Ex. 2, Video 4, 00:25-00:27). Mr. Bragg began to step away
from the student, but then leaned back down over the student. (Doc. 47-12, Ex. 2,
Video 4, 00:28-00:29). Mr. Bragg stepped his left leg back and created space
2

“HCBOE (Bragg) 188 Edit FERPA Montview Security video 4” (“Video 4”) (Doc. 471, Ex. 2) is zoomed in the most and provides the clearest view of the incident.
11

between himself and the student. (Doc. 47-12, Ex. 2, Video 4, 00:30). Mr. Bragg
pulled something out of the student’s hair. (Doc. 47-12, Ex. 2, Video 4, 00:3000:33). Mr. Bragg then walked away. (Doc. 47-12, Ex. 2, Video 4, 00:34-00:35).
Neither the student nor Ms. Moore-Smith reacted in any way.
Later that day, Ms. Moore-Smith brought the student to the school nurse,
Susan Benfield. (Doc. 47-4, p. 11). On an office visit report dated August 7, 2014,
Ms. Benfield wrote, “[Ms.] Moore-Smith brought [the student] to the clinic after
PE and stated, ‘I was at PE and saw Coach Bragg pick [the student] up by the neck,
and [the student] is complaining that her neck hurts and you can see a red mark on
her neck.’ [The student] states, ‘Coach Bragg is mean.’” (Doc. 47-1, p. 61). Ms.
Moore-Smith was not in the room when Ms. Benfield had a conversation with the
student. (Doc. 47-4, p. 11). Ms. Benfield noted that the student had a small area of
red skin on the front right side of her neck, a small scratch on the front or left side
of her neck, and scant bleeding. (Doc. 47-1, p. 61). Ms. Benfield cleaned the
scratch with soap and water and applied a Band-Aid. (Doc. 47-1, p. 61). Ms.
Benfield reported that the student could rotate her neck without pain. (Doc. 47-1,
p. 61).
Ms. Benfield suggested that Ms. Moore-Smith write a statement
documenting the incident. (Doc. 47-1, p. 61). Ms. Benfield took the student to
Ms. Davis’s office. (Doc. 47-1, p. 61). Ms. Benfield notified the student’s parents.
12

(Doc. 47-1, pp. 61-62). The student’s mother informed Ms. Benfield that the
student had been seeing a doctor for the past 9 to 12 months because of neck
issues. (Doc. 47-1, p. 63). According to her mother, the student’s neck would
stiffen at times and doctors could not pinpoint the problem with an MRI. (Doc. 471, p. 63). The student’s mother told Ms. Benfield that the student knew Mr. Bragg
“from last year” and that she knew Mr. Bragg “would not maliciously hurt [the
student].” (Doc. 47-1, p. 63). The student returned to class later that day. (Doc.
47-1, p. 63).
On the day of the incident, Mr. Bragg wrote a statement:
I was leaving gym and a 2nd grade class was getting water. I casually
walked up, laughing, and said a little girl was mean and I put my
hands around her neck carefully and laughed and said she is one of the
best. As I was pulling away, my whistle stuck and pulled her hair. I
untangled and apologized and walked off.
The child is a very sweet child. I talk to [her] grandparents all the
time about how sweet she is. I have had 6 principals in 19 years.
They will all tell I am a good employee.
I am a father and grandfather, I would never hurt a child on purpose. I
don’t like being accused of things so much in [the] last 2 [] years. I
have always taken pride in being a good parent, coach and teacher. I
try to make all children and parents feel comfortable. I would like to
continue until retiring.
(Doc. 47-14, p. 9).
Ms. Moore-Smith submitted an incident report the following morning.
(Doc. 47-4, p. 16). In the report, she stated:
13

Coach Bragg exited the gym and stopped behind [the student]. He
placed both hands on her shoulders and jokingly said, “[t]his is the
worst student in your class.” I smiled back and said, “[n]ope, she’s
one of the good ones.” He then quickly moved his hands from her
shoulders and proceeded to playfully pick [the student] up by the
neck. He then put her down and walked away. [The student] looked
upset. I asked her if she was okay. She had one of her hands on her
neck and said, “[n]o my neck hurts.”
(Doc. 47-4, p. 16).
On August 8, 2014, Ms. Davis gave Mr. Bragg a formal written reprimand
for the incident. (Doc. 47-3, p. 48). In the reprimand memo, Ms. Davis wrote,
“[u]pon viewing the video, it was clearly evident that the child was lifted from the
floor via your efforts. The student’s mother is demanding that disciplinary actions
be taken against you. Based on previous documentations (see attached), you have
been advised on multiple occasions to adhere to our ‘no touch’ policy.” (Doc. 473, p. 48).
On August 11, 2014, Mr. Bragg wrote another statement about the incident:
[O]n August 7[,] as I walked by a class getting water, in a laughing
and kidding manner I causally said a child was mean laughing and
playing, whole time. I then hugged child and put my hands around
her neck [again playing] and I said I will pick you up by [the] neck.
As I hugged her, my whistle got stuck in her hair. I apologized to her
and got [the] whistle out of her hair. I was not mad or anything. I feel
bad, because this is a very good child, since kindergarten. I play and
look out for her, always. Her past teachers can testify to all that.
I have 2 sons on HPD, and 2 granddaughters and I am a good father,
grandfather, teacher and coach to each and every one. I have always
been a hands on person and I have only gave children affection and
care.
14

In regard to the two accusations from last year, the staff investigated
and found both accusations from last year were false. Coach Wilkins,
who was [the] PE teacher at the time[,] will verify that the 5th grade
was after me. They did not like being told what to do, therefore they
said things that were not true.
. . . I have done nothing wrong. I just want to finish my career. I
love and enjoy teaching and coaching. . . . I feel good when I see or
hear things happening when they get older. I enjoy seeing children
grow and develop.
(Doc. 47-1, p. 78).
That day, Mr. Bragg requested via email a meeting with Ms. Davis, the
Board’s deputy superintendent, Dr. Barbara Cooper, and the Board’s director of
elementary education, Dr. Cathy Vasile, because he did “not want [his] reputation
ruined” and “want[ed] things worked out.” (Doc. 47-1, p. 80). Because his email
could not reach Dr. Vasile, Mr. Bragg sent his request via email again to Ms.
Davis. (Doc. 47-1, p. 79). In his email, Mr. Bragg stated:
I have always prided myself in being a good teacher. I may not be
certified, but everyone in the past has depended and counted on me.
Now, I feel like I have wasted 18 years.
I am a good
parent/grandparent/teacher and coach. I feel all this is ruining my
reputation and I am very upset and I do not feel you have my back,
like I have yours and everyone I have worked with or for.
I worked for [five previous principals] and I felt like what I do is
important. I don’t feel that way anymore. I could have transferred if I
did not like it here. However, I have always liked students to come
back and visit. I like seeing good stories about past students. They
usually tell me what all is going on in their life, whether it be family,
school, work. I understand that in all these years, some people dislike
me, but I always keep children in my mind. This is why, I feel all this
15

is uncalled for. God knows, I never did this for the money, but it is
for kids. I want to discuss with Dr. Cooper. I do not want to transfer,
but if that is what I need to do, I will. I don’t like worrying about
little stuff.
(Doc. 47-1, p. 79).
Mr. Bragg, Ms. Davis, and Dr. Vasile met on August 25, 2014. (Doc. 47-1,
p. 83). Mr. Bragg sent Ms. Davis and Dr. Vasile an email after the meeting:
. . . I still do not feel write ups belong in my human resource file. I
am very aware that what I did in August 7, 2014 was not very
professional. [I am truly sorry] I would never hurt any child on
purpose. I have been a good employee since 1996 and last couple
years since I came back from cancer has been worse. 3 I was one
selected for restraint training, so I am very aware what and how to
handle all children. I have always been the one to help with discipline
until now, so I will be assistant.
From 1996 until 2014 I was not treated like aide. However, yall made
it clear yesterday that I am P.E. assistant, so I will do what teacher
tells me. I am a grown man trying to make things better for these
children.
(Doc. 47-1, p. 83).
On September 17, 2014, Ms. Williams interviewed Mr. Bragg. (Doc. 47-1,
p. 84). Ms. Williams took notes of the interview. According to the notes, Mr.
Bragg told Ms. Williams that he was “teasing and playing” with the girl and
hugged her with his hands around her neck. (Doc. 47-1, p. 84). He joked that he
would pick her up by the neck, and then his badge and whistle got stuck in the
girl’s hair. (Doc. 47-1, p. 84). Mr. Bragg explained to the girl’s grandmother what
3

At the time, Mr. Bragg had stage IV throat and brain cancer. (Doc. 47-1, p. 7).
16

happened. Mr. Bragg said the grandmother was fine, he apologized, and the girl
gave Mr. Bragg “a big hug in front of the grandmother.” (Doc. 47-1, p. 84). Mr.
Bragg said he would not hurt any child, much less this particular student because
she was so fragile. (Doc. 47-1, p. 84).
Mr. Bragg explained that Ms. Davis had instructed him to stand near the
girls’ bathroom earlier in the year and that he had grabbed the student in April to
stop her from fighting. (Doc. 47-1, pp. 84-85). He said that he had no idea why
people were saying that he is touching girls, that he had not squeezed or grabbed
anybody’s arm, and that he does not know why students feel uncomfortable around
him. (Doc. 47-1, p. 85). Mr. Bragg told Ms. Williams that he did not pick the girl
up. (Doc. 47-1, p. 84). Mr. Bragg told Ms. Williams this because he did not know
whether he did or not because he was playing and he had not seen the video at that
time. (Doc. 47-1, p. 23).
In September 2014, Mr. Bragg was reassigned to the warehouse at the
school. (Doc. 47-1, p. 28). Mr. Bragg performed manual labor at the warehouse.
(Doc. 47-1, p. 28). Among other duties, he loaded and unloaded trucks, stocked
shelves, and packaged materials for custodians. (Doc. 47-1, p. 28).
Meanwhile, the Madison County Department of Human Resources (DHR)
investigated the incident at the water fountain. (Doc. 55-1, pp. 44-53). DHR
concluded its investigation on September 2, 2014. (Doc. 55-1, p. 48). According
17

to the DHR administrative law judge, following the investigation, “[r]ather than
offering Mr. Bragg an administrative hearing he was offered an administrative
record review, resulting in a substantial delay (until 2016) in the matter being
referred to the Office of Administrative Hearing for the scheduling of a hearing.”
(Doc. 55-1, p. 48). Sometime in 2016, the administrative law judge conducted a
hearing at which Mr. Bragg and Ms. Davis testified. (See Doc. 55-1, pp. 46-48).
On December 19, 2016, the administrative law judge entered his final
decision and concluded that Mr. Bragg did not abuse or neglect the student. (Doc.
55-1, p. 53). The judge found:
The evidence in this case established that Mr. Bragg, who was
quite fond of [the student], playfully and briefly picked her up and
then set her back down on the floor. The evidence and the video did
not establish any discomfort, distress or injury to [the student] as a
result of this incident. Rather [the student], who appeared unfazed,
remained on the line to the water fountain and drank from the fountain
when it was her turn.
Certainly Mr. Bragg’s actions in picking [the student] up reflect
poor judgment on his part. However, no evidence suggests that he
intended to in any way harm [the student] nor did the evidence
establish that he did harm [the student]. Therefore, I find that his
actions do not rise to the level of child abuse.
(Doc. 55-1, pp. 48-49).
D.

The Proposed Termination

On September 25, 2014, Dr. Wardynski sent Mr. Bragg a written notice of
proposed termination. (Doc. 47-1, pp. 49-52). In the notice, Dr. Wardynski stated
18

that he was proposing termination to the Board because Mr. Bragg touched female
students inappropriately; continued to touch and grab students after being directed
not to do so by Ms. Davis; continued to touch and grab students after promising to
Ms. Davis that he would not do so; treated students in an insulting, disrespectful,
and threatening manner; and lied to his supervisor about his actions. (Doc. 47-1, p.
49). Dr. Wardynski cited as specific examples of improper conduct the February
18, April 1, and August 7, 2014 incidents. (Doc. 47-1, p. 50). Dr. Wardynski also
noted that Mr. Bragg lied to Ms. Davis and Ms. Williams about lifting the student
off of the ground. (Doc. 47-1, p. 51).
Mr. Bragg contested the proposed termination. (Doc. 47-1, p. 86). Mr.
Bragg sent Dr. Wardynski an email in which Mr. Bragg stated:
I have worked at Montview since 1996 and I have always tried to be a
good employee. The incident they say happened on [August] 7, 2014
I took credit for. I was only playing with the student. All the
accusations last school year are far from the truth. I am sending this
because it makes me look bad and I am not. If someone will talk to
my current staff plus any former coworkers. They can talk to parents
and students and they will attest. Some of these parents were former
students.
I have it being handled, but I am nowhere near like this. I will not get
your email because the school or HCS closed my email. Also, I have
been involved with children since 1978 when I first coached.
I have always looked out for these students as well as any child.
I am writing because this really bothers me . . .
Please look into things at Montview.
19

(Doc. 47-1, p. 89).
On September 26, 2014, a local news station published a story titled,
“Montview Elementary School teacher recommended for termination after picking
student up by her neck.” (Doc. 47-1, p. 87). The story included excerpts of the
August 8, 2014 reprimand memo from Ms. Davis and quotes from the mother of
the student who Mr. Bragg lifted. (Doc. 47-1, p. 88). The news station did not
contact Mr. Bragg for a comment. (Doc. 47-1, p. 24). Mr. Bragg does not know
who reported the story to the news station, but according to Mr. Bragg, Ms.
Davis’s daughter worked at the news station. (Doc. 47-1, p. 24).
Through his attorney, Mr. Bragg requested a hearing on the proposed
termination. (Doc. 47-1, p. 94). Pursuant to the Alabama Students First Act, Mr.
Bragg, as a tenured employee, was entitled to a hearing on his proposed
termination at which he could “present testimony, other evidence, and argument on
matters relevant to the proposed termination and [] cross-examine witnesses whose
testimony is proffered in support of the proposed termination.” Ala. Code § 1624C-6(c). Mr. Bragg’s attorney asked Dr. Wardynski to provide several pieces of
evidence regarding the proposed termination.

(Doc. 47-1, pp. 91-93).

Dr.

Wardynski notified Mr. Bragg that the hearing was set for December 9, 2014.
(Doc. 47-1, p. 95).
According to Mr. Bragg, Ms. Williams advised him to “just go ahead and
20

resign instead of fighting [the proposed termination]” and to “[g]o ahead and
resign because that’s what most people do [] in your situation.” (Doc. 47-1, p. 26,
tr. pp. 97-98). Mr. Bragg testified that a Board member, Topper Birney, told Mr.
Bragg that the Board would do whatever Dr. Wardynski proposed. (Doc. 47-1, p.
26). According to Mr. Bragg, at a Christmas party at the school warehouse, he
mentioned his proposed termination to another Board member, Laurie McCauley,
and Ms. McCauley said “whatever Dr. Wardynski recommended.” (Doc. 47-1, p.
26). Mr. Bragg took this to mean that the Board would take whatever action Dr.
Wardynski recommended with respect to his (Mr. Bragg’s) proposed termination.
(Doc. 47-1, p. 27).
According to Mr. Bragg, Ms. Williams informed him that he would not keep
his health insurance benefits if he was terminated, but that he would retain his
benefits if he retired instead. (Doc. 47-1, p. 27). Mr. Bragg needed his health
insurance for his cancer treatment. (Doc. 47-1, p. 27). Therefore, on December 9,
2014, the day of the hearing, Mr. Bragg notified Dr. Wardynski that he would
retire at the end of January 2015. (Doc. 47-1, p. 96). Accordingly, the Board did
not hold a hearing on the proposed termination. (Doc. 47-1, p. 25).
Mr. Bragg remained employed until he retired on February 1, 2015. (Doc.
47-1, pp. 27, 97). Afterwards, Stephanie Burris, who was 32 years old at the time,
began performing Mr. Bragg’s physical education aide duties. (Doc. 55-4, p. 2, ¶
21

3).
E.

Mr. Bragg’s Lawsuit

On March 13, 2015, Mr. Bragg filed a charge of discrimination with the
EEOC. (Doc. 47-1, pp. 98-99). In the charge, Mr. Bragg alleged that he was
recommended for termination because of unlawful age discrimination. (Doc. 47-1,
p. 98).

The EEOC was unable to conclude that the Board committed age

discrimination and sent Mr. Bragg a right to sue letter on October 1, 2015. (Doc.
47-1, p. 102).
On January 6, 2016, Mr. Bragg filed his complaint in this Court. (Doc. 1).
In his initial complaint, Mr. Bragg asserted an ADEA disparate treatment claim
against the Board and two § 1983 claims against several other defendants. (Doc. 1,
pp. 4-5). Mr. Bragg abandoned one § 1983 claim, and the Court dismissed the
other. (See Docs. 21, 30). In his amended complaint, Mr. Bragg alleges that Dr.
Wardynski proposed terminating him because of his age, and the Board therefore
violated the ADEA. (Doc. 21, pp. 2-5). The Board contends that Mr. Bragg has
not created a genuine issue of material fact on his ADEA claim. (Doc. 45).
III.

ANALYSIS
A.

The Board’s Motion to Strike

The Board asks the Court to strike parts of Mr. Bragg’s affidavit and parts of
his brief in response to the Board’s motion for summary judgment. (Doc. 59, pp.
22

1-3). The Board should have raised its objections in its reply brief because the
objections concern evidence on which Mr. Bragg relies. The Court construes the
Board’s motion to strike as an objection to evidence under Rule 56(c)(2) of the
Federal Rules of Civil Procedure. See Taylor v. City of Gadsden, 958 F. Supp. 2d
1287, 1291 (N.D. Ala. 2013), aff’d, 767 F.3d 1124 (11th Cir. 2014) (treating
motion to strike as an objection). 4
Rule 56(c)(2) enables a party to submit evidence that ultimately will be
admissible at trial in an inadmissible form at the summary judgment stage. Under
the rule, a district court may, for example, “consider a hearsay statement in passing
on a motion for summary judgment if the statement could be reduced to admissible
evidence at trial or reduced to admissible form.” Jones v. UPS Ground Freight,
683 F.3d 1283, 1293-94 (11th Cir. 2012) (quoting Macuba v. Deboer, 193 F.3d
1316, 1322 (11th Cir. 1999)). A district court has broad discretion to determine at
the summary judgment stage what evidence it will consider pursuant to Rule
56(c)(2). See Green v. City of Northport, 2014 WL 1338106, at *1 (N.D. Ala.

4

Effective December 1, 2010, motions to strike summary judgment evidence no longer
are appropriate. See Fed. R. Civ. P. 56(c)(2) advisory committee note (2010 amendments)
(“There is no need to make a separate motion to strike.”); Campbell v. Shinseki, 546 Fed. Appx.
874, 879 (11th Cir. 2013) (“The plain meaning of [amended Rule 56(c)(2)] show[s] that
objecting to the admissibility of evidence supporting a summary judgment motion is now a part
of summary judgment procedure, rather than a separate motion to be handled preliminarily . . .
.”). Pursuant to Federal Rule of Civil Procedure 56(c)(2), at the summary judgment stage, “[a]
party may object that the material cited to support or dispute a fact cannot be presented in a form
that would be admissible in evidence.” Accordingly, objections to evidence supporting or
opposing a motion for summary judgment should be made in the objecting party’s brief.
23

March 31, 2014).
The Board asks the Court to strike from Mr. Bragg’s affidavit his statement
that he lifted the student by her arms after she grabbed his arms. (Doc. 55-1, p. 3, ¶
8; Doc. 59, pp. 7-8). The Board argues that the statement “is inadmissible because
it conflicts with his previous deposition testimony.” (Doc. 59, p. 3, ¶ 8). The
Board notes that Mr. Bragg testified at his deposition that he “lifted the child up by
her shoulder.” (Doc. 59, p. 2, ¶ 7) (citing Doc. 47-1, pp. 65-66, 85-86). Mr.
Bragg’s affidavit testimony concerns what he believes the security video footage
shows. (Doc. 55-1, p. 3, ¶ 8) (“The video depicts me . . . lifting the girl with her
holding on to my arms . . . .”). The Court will consider Mr. Bragg’s interpretation
of the video.
Beyond the affidavit, the Board asks the Court to strike from Mr. Bragg’s
responsive brief the statements: “Later [on August 7, 2014], Moore[-Smith] told
Bragg that she had been forced to write a witness statement about the incident by
Towana Davis and that he was being watched”; and “Bragg testified that Irene
Moore[-]Smith told him that Towana Davis instructed her to write a statement
about the incident because [the allegation that Mr. Bragg picked the student up by
her neck] was false.” (Doc. 54, pp. 9, 24; Doc. 59, pp. 1-2, ¶¶ 3-4). The Board
argues that the statements are inadmissible hearsay and not supported by Ms.
Moore-Smith’s or Mr. Bragg’s deposition testimony. (Doc. 59, p. 2, ¶¶ 5-6). Mr.
24

Bragg could avoid a hearsay objection at trial by calling Ms. Moore-Smith as a
witness, but the Court has not been able to find support for the statements in the
evidentiary record in a deposition, an affidavit, or a declaration. Therefore, the
Court will disregard the unsworn statements in its evaluation of the Board’s
summary judgment motion.
B.

Mr. Bragg’s ADEA Claim

The ADEA prohibits employers from discharging employees who are at
least 40 years old because of their age. 29 U.S.C. §§ 623(a)(1), 631(a). When, as
here, there is no direct evidence of age discrimination, a plaintiff may rely on
circumstantial evidence to establish that he was discharged because of his age.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Liebman v. Metro. Life
Ins. Co., 808 F.3d 1294, 1298 (11th Cir. 2015).

Under the burden-shifting

framework in McDonnell Douglas, the plaintiff first must establish a prima facie
case of age discrimination by showing that: “(1) he was a member of the protected
group between the age of forty and seventy; (2) he was subject to an adverse
employment action; (3) a substantially younger person filled the position from
which he was discharged; and (4) he was qualified to do the job from which he was
discharged.” Liebman, 808 F.3d at 1298 (citing Kragor v. Takeda Pharm. Am.,
Inc., 702 F.3d 1304, 1308 (11th Cir. 2012)).
If the plaintiff establishes a prima facie case, then the burden shifts to the
25

employer to produce evidence of a legitimate, non-discriminatory reason for the
challenged action. Kragor, 702 F.3d at 1308. The employer satisfies this burden
by producing evidence that “raises a genuine issue of fact as to whether it
discriminated against the plaintiff.” Kragor, 702 F.3d at 1308 (internal quotation
marks omitted) (citing Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th
Cir. 1997)); see Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 142
(2000) (“This burden is one of production, not persuasion.”).
If the employer satisfies its burden, then “the burden shifts back to the
employee to show that the employer’s reason is a pretext.” Liebman, 808 F.3d at
1298 (citing Kragor, 702 F.3d at 1308). “The plaintiff can show pretext ‘either
directly by persuading the court that a discriminatory reason more likely motivated
the employer or indirectly by showing that the employer’s proffered explanation is
unworthy of credence.’” Kragor, 702 F.3d at 1308 (quoting Texas Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 256 (1981)). “In other words, the plaintiff has
the opportunity to come forward with evidence, including the previously produced
evidence establishing the prima facie case, sufficient to permit a reasonable
factfinder to conclude that the reasons given by the employer were not the real
reasons for the adverse employment decision.” Combs, 106 F.3d at 1528 (citing
Burdine, 450 U.S. at 256, and McDonnell Douglas, 411 U.S. at 804). The plaintiff
may establish pretext with “a convincing mosaic of circumstantial evidence that
26

would allow a jury to infer intentional discrimination by the decisionmaker.”
Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (citations
and internal quotation marks omitted).
Because Mr. Bragg was 60 years old at the time of the alleged adverse
employment action, he has satisfied the first element of his prima facie case.
Because Ms. Burris was 32 years old when she took over Mr. Bragg’s duties, Mr.
Bragg has satisfied the third element of his prima facie case. Because Mr. Bragg
worked as a physical education aide for 19 years and the qualifications for the
position did not change, Mr. Bragg has satisfied the fourth element of his prima
facie case. The Board challenges Mr. Bragg’s ability to establish the second
element of his prima facie case, namely that he was subjected to an adverse
employment action.
The Eleventh Circuit has “long recognized that constructive discharge can
qualify as an adverse employment decision under ADEA.” Hipp v. Liberty Nat.
Life Ins. Co., 252 F.3d 1208, 1230 (11th Cir. 2001) (citations omitted). “The
threshold for establishing constructive discharge in violation of ADEA is quite
high. . . .

To successfully claim constructive discharge, a plaintiff must

demonstrate that working conditions were so intolerable that a reasonable person in
[his] position would have been compelled to resign.” Hipp, 252 F.3d at 1231
(internal quotation marks omitted) (citing Poole v. Country Club of Columbus,
27

Inc., 129 F.3d 551, 553 (11th Cir. 1997)); see also Rowell v. BellSouth Corp., 433
F.3d 794, 806-07 (11th Cir. 2005) (“Because Rowell was not faced with an
impermissible take-it-or-leave-it choice between retirement or discharge, we find
that he cannot establish an adverse employment action of constructive discharge . .
. .”). “The fact that one of the possible outcomes is that [the plaintiff] would lose
his job alone is not sufficient to establish the intolerable conditions sufficient to
justify a finding of constructive discharge . . . .” Rowell, 433 F.3d at 806. “The
standard for proving constructive discharge is higher than the standard for proving
a hostile work environment.” Hipp, 252 F.3d at 1231 (citing Landgraf v. USI Film
Prod., 968 F.2d 427, 430 (5th Cir. 1992), aff’d, 511 U.S. 244 (1994)). This is an
objective standard and courts “do not consider the plaintiff’s subjective feelings.”
Hipp, 252 F.3d at 1231.
An involuntary resignation may constitute a constructive discharge. Morgan
v. Ford, 6 F.3d 750, 755 (11th Cir. 1993). “An employee’s resignation will be
deemed involuntary where the employer (1) forces the resignation by coercion or
duress, or (2) obtains the resignation by deceiving or misrepresenting a material
fact to the employee.” Ross v. City of Perry, Ga., 396 Fed. Appx. 668, 670 (11th
Cir. 2010) (citing Hargray v. City of Hallandale, 57 F.3d 1560, 1568 (11th Cir.
1995)). An employer forces resignation by coercion or duress when, “under the
totality of the circumstances, the employer’s conduct in obtaining the employee’s
28

resignation deprived the employee of free will in choosing to resign.” Hargray, 57
F.3d at 1568. An employer obtains resignation by deceit or misrepresentation if
the employer mispresents a material fact concerning the resignation, and the
employee reasonably relies on the misrepresentation. Id. at 1570.
Mr. Bragg argues that his resignation was involuntary and he was
constructively discharged because he “was informed that he might be discharged
with a consequent loss of retirement benefits,” “suffered an intolerable change in
job duties with a loss in pay,” and resigned because of “coercion, duress[,] and
misrepresentation.” (Doc. 54, pp. 17, 19). Mr. Bragg compares himself to the
plaintiff in Downey v. S. Nat. Gas Co., 649 F.2d 302 (5th Cir. Unit B June 1981),
an opinion that is binding precedent. (Doc. 54, pp. 17-18).5 In Downey, the
plaintiff, a 61-year-old employee, sought transfer to a new position, but his
employer gave the position to a much younger employee with much less
experience. The plaintiff was told that he was not selected because of his advanced
age, that the company had nothing else for him to do, that he was in danger of
being discharged because the company did not want to keep him around until the
mandatory retirement age of 70, and that he would lose all of his stock benefits if
he were discharged. The plaintiff retired early to keep his benefits. He then filed
5

“[D]ecisions of the United States Court of Appeals for the Fifth Circuit (the ‘former
Fifth’ or the ‘old Fifth’), as that court existed on September 30, 1981, handed down by that court
prior to the close of business on that date, shall be binding as precedent in the Eleventh Circuit . .
. .” Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981).
29

suit under the ADEA, claiming that he had been constructively discharged. (Doc.
47-1, pp. 98-99).
The Fifth Circuit found that “[a] reasonable person might well feel
compelled to resign in the face of” the statement “that he might be discharged[]
with a consequent loss of benefits.” Downey, 649 F.2d at 305. Accordingly, the
Fifth Circuit held that the plaintiff created “a contested issue of material fact
regarding constructive discharge.” Id.
Mr. Bragg argues that like the plaintiff in Downey, he received notice that he
potentially was facing termination.
Then, just as the personnel director in Downey, [Ms. Williams] told
Bragg that if he were discharged, he would lose his retirement
benefits, such as health insurance. And Laurie McCauley, just as the
personnel director said in Downey, told Bragg that the Board would
do whatever Dr. Wardynski proposed—meaning that it was almost
certain that the Board would terminate his employment. Finally, like
the plaintiff in Downey, Richard Bragg resigned rather than face loss
of his retirement benefits.
(Doc. 54, pp. 17-18). According to Mr. Bragg, “given the similarities between
Downey and the instant case, his retirement was involuntary because the possibility
of discharge threatened his future well-being. . . . Downey compels a conclusion
that Richard Bragg has presented a genuine issue of material fact as to constructive
discharge.” (Doc. 54, pp. 18). The Court disagrees.
As the Eleventh Circuit explained in Rowell, Downey does not establish that
any employee who chooses to resign rather than risk possible termination and a
30

consequent loss of benefits is constructively discharged. Rowell, 433 F.3d at 805.
Such an employee “may well think that the only reasonable response is to resign
and take the [benefits] package, but the motivation is purely economic.” Id. Mr.
Bragg’s situation is not like Mr. Downey’s situation, in large part because Mr.
Downey was not facing disciplinary action. Mr. Downey learned that he was
passed over for a job opening in his company because of his advanced age, and he
was told that he risked losing his job because his company could avoid providing
benefits to him if he lost his job before he reached the mandatory retirement age of
70. Here, because of his cancer, Mr. Bragg had a strong economic incentive to
choose a path that would enable him to retain his health benefits, but his decision
to resign cannot be characterized as a constructive discharge because Mr. Bragg
had the option of remaining in his job and challenging his notice of proposed
termination.6 Because the record clearly demonstrates that Mr. Bragg ignored
repeated instructions to keep his hands off students, his decision to forego the
administrative process and opt for his health care benefits seems a wise choice of
an advantage.

Mr. Bragg did not resign and retain his benefits to avoid an

inevitable employment action based solely on his age. That is the difference
between Mr. Bragg and Mr. Downey.
6

The Alabama Students First Act provides that “[a]n employee who is terminated
following a hearing requested by the employee may obtain a review of an adverse decision by
filing a written notice of appeal to the State Superintendent of Education within 15 days of
receipt of the decision.” Ala. Code § 16-24C-6(e).
31

Mr. Bragg also argues that the transfer to the warehouse, which he
characterizes as “an embarrassing demotion with a loss of pay,” constituted
“changes to his working conditions [that] were so intolerable that a reasonable
person would have felt compelled to resign.”

(Doc. 54, p. 19).

The Court

understands that Mr. Bragg was frustrated with his transfer, but Mr. Bragg has not
presented evidence demonstrating that the transfer met the high standard for a
constructive discharge. Moreover, Mr. Bragg’s opinion that “[b]y watching the
video, Dr. Wardynski should have known that [the Board] had no real case against
Richard Bragg” does not create a genuine issue as to whether his resignation was
the product of coercion, duress, and misrepresentation. (Doc. 54, p. 21).
Even if Mr. Bragg had made a prima facie case, Dr. Wardynski had
legitimate non-discriminatory reasons for proposing termination, and Mr. Bragg
has not shown that these reasons are pretext.

The Board’s legitimate non-

discriminatory reasons are well-stated in the notice of proposed termination.
Following an investigation, Dr. Wardynski found that Mr. Bragg: (1)
inappropriately touched female students; (2) continued to touch and grab students
after being directed not to do so; (3) continued to touch and grab students after
promising that he would not do so; (4) treated students in an insulting,
disrespectful, and threatening manner; and (5) lied to supervisors when accused of
improper conduct. (Doc. 47-1, p. 49). Dr. Wardynski cited as specific examples
32

for his findings the February 18, April 1, and August 7, 2014 incidents and the
incident when Mr. Bragg lied to Ms. Davis and Ms. Williams about lifting the
student off of the ground. (Doc. 47-1, pp. 50-51).
Mr. Bragg offers several unpersuasive arguments for pretext. First, Mr.
Bragg argues that the Board was dishonest about its reasons for proposing his
termination. (Doc. 54, pp. 23, 25). Specifically, Mr. Bragg contends that the
Board had no legitimate reason to terminate him because, according to Mr. Bragg,
the August 7, 2014 video shows that he did not lift the student by her neck, he
could not have injured the student whom he lifted, the February and April 2014
accusations were unsubstantiated, and witness statements against him were the
product of an agenda to remove him. (Doc. 54, pp. 22-25).
According to Mr. Bragg, “the still frames from the video demonstrate that
[he] did not grab the child by her neck and did not rub the child on his crotch.”
(Doc. 54, p. 23). Mr. Bragg contends that instead he “picked the child up when the
child grabbed his arm, he placed the child back on the ground, hugged her around
the neck, and caught his lanyard in her hair,” and Dr. Wardynski therefore had no
reason to think Mr. Bragg picked the child up by her neck and rubbed her against
his groin. (Doc. 54, p. 23).
Reasonable jurors could accept Mr. Bragg’s contention that he lifted the
student by the arms, but no reasonable juror could doubt that Dr. Wardynski
33

honestly and reasonably believed that Mr. Bragg lifted the student by her neck.
See Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991) (“The
inquiry of the ADEA is limited to whether [decisionmakers] believed that Elrod
was guilty of harassment, and if so, whether this belief was the reason behind
Elrod’s discharge.”) (emphasis in original); Baker v. Russell Corp., 372 Fed. Appx.
917, 920 (11th Cir. 2010) (“Whether an employee actually engaged in the
misconduct that was reported to the decision-maker is irrelevant to the issue of
whether the decision maker believed that the employee had done wrong.”).
The video footage by itself could support Dr. Wardynski’s position, but Dr.
Wardynski relied on more than the video. He relied also on Ms. Moore-Smith’s
witness statement that Mr. Bragg lifted the student by the neck, the nurse’s report
of the student’s neck injury, and Mr. Bragg’s two written statements in which he
stated that he lifted the student by her neck. Dr. Wardynski viewed this evidence
in light of the February and April accusations. Even if Dr. Wardynski shared Mr.
Bragg’s interpretation of the video, discredited the witness statements and the
February and April allegations, and doubted the student’s injury, he still had
reasons to propose Mr. Bragg’s termination. Mr. Bragg lied to Ms. Williams about
lifting the student when he did in fact lift the student, he had twice before promised
that he would take a hands-off approach with students, and he was in fact the
subject of similar accusations on two previous occasions.
34

As mentioned above, Mr. Bragg contends that Ms. Moore-Smith’s statement
on which Dr. Wardynski relied is false because “[Mr.] Bragg testified that [Ms.]
Moore Smith told him that [Ms.] Davis instructed her to write a statement about
the incident because [the allegation that he picked the student up by her neck] was
false.” (Doc. 54, p. 24). The Court cannot locate this testimony. Ms. Davis told
Ms. Moore-Smith to write a statement about the incident, (Doc. 47-1, p. 18), but
there is nothing unusual about a principal instructing a witness to write a statement
following this kind of incident. And there is no evidence in the record to support
Mr. Bragg’s allegations that Ms. Davis “forced” Ms. Moore-Smith’s statement,
that Ms. Williams “tried to push the sexual abuse narrative on [Ms. MooreSmith],” or that “the so-called investigation was conducted with an agenda . . . to
find pretext.” (Doc. 54, p. 24). These conclusory assertions do not create a
genuine issue of fact.
Mr. Bragg also argues that he did not injure the student when he lifted her up
because “the video demonstrates no reaction from Irene Moore Smith upon seeing
the child picked up. The video shows the child frolicking in the hall after Bragg
put her down.” (Doc. 54, p. 24). That may be so, and reasonable jurors could
agree that Mr. Bragg did not cause the student’s injury. But reasonable jurors
could not doubt that Dr. Wardynski honestly and reasonably believed that Mr.
Bragg injured the student because of the nurse’s report detailing the injury and Ms.
35

Moore-Smith’s statement that the child said her neck hurt right after Mr. Bragg
lifted her.
Additionally, Mr. Bragg contends that the Board has “made a habit of
forcing resignation of workers who have reached retirement age.” (Doc. 54, p. 12).
To support this conclusory allegation, Mr. Bragg cites to three pages of a 281-page
document that lists birthdates and payroll information for 2,513 employees. (Doc.
54, p. 12; Doc. 55-28). According to Mr. Bragg, the document shows that “the
vast majority of tenured employees who have been issued a notice of termination
are at retirement age.” (Doc. 54, p. 12). Mr. Bragg has not explained and the
Court cannot locate information in the document concerning forced resignations or
notices of termination. Mr. Bragg cites “generally” to this same kind of document
from 2013 and 2014 and argues that “the Board has greatly increased the number
of employees who are between 20[ and ]35 years of age.” (Doc. 54, p. 12; Doc.
55-24; Doc. 55-25). Mr. Bragg has not explained how this data supports his
argument or laid “an analytic foundation” for the significance of the date as
circumstantial statistical evidence. Evans v. McClain of Georgia, Inc., 131 F.3d
957, 963 (11th Cir. 1997). Therefore, this data does not support Mr. Bragg’s
contention that the Board discriminated against him on the basis of his age.
Finally, Mr. Bragg argues that Dr. Wardynski and Ms. Williams “have
treated other employees less harshly for similar conduct,” particularly Kimberly
36

Davidson and Anthony Thompson who are both younger than Mr. Bragg. (Doc.
54, pp. 12, 26). The record does not support this argument.
Employees who are “involved in or accused of the same or similar conduct
and [] disciplined in different ways” are valid comparators to a plaintiff. Maniccia
v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999) (citation and internal quotation
marks omitted). The Eleventh Circuit requires that “the quantity and quality of the
comparator’s misconduct be nearly identical to prevent courts from secondguessing employers’ reasonable decisions and confusing apples with oranges.” Id.
Mr. Thompson allegedly cursed at, struck, and shoved a student to the
ground, threatened to strike students with a paddle he kept in his office, struck two
students with the paddle, was suspended previously for striking a student, and had
a history of inappropriate behavior. (Doc. 55-5, pp. 1-3). Mr. Thompson resigned
after receiving a notice of proposed termination. (Doc. 47-9, p. 22). Mr. Bragg
contends that because the Board only suspended Mr. Thompson when he first
struck a student, knew that he struck students with a paddle, and sought
termination only after a student brought a complaint, the Board was “tolerant of
Thompson but intolerant of Bragg.” (Doc. 54, p. 26). But the Board treated Mr.
Thompson and Mr. Bragg similarly. When Mr. Thompson first struck a student,
the Board gave him a lesser punishment, suspension. When Mr. Bragg was first
accused of inappropriate touching, the Board gave him a lesser punishment, a
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formal written reprimand. When Mr. Thompson struck a student again, the Board
proposed terminating him. When Mr. Bragg inappropriately touched a student
again and lifted her off the ground, the Board proposed terminating him. In both
cases, the Board sought termination only after the Board disciplined the employee
for prior misconduct.
The Board first suspended Ms. Davidson for pushing a student into a wall
and causing him to suffer a cut lip, and two years later suspended her for pulling a
third grade student by the arm and calling her a “little brat.” (Doc. 55-21, p. 2).
According to Mr. Bragg, the Board suspended Ms. Davidson for being
“malicious,” yet sought to terminate Mr. Bragg when he “merely restrained a
student and . . . lifted a girl playing with her.” (Doc. 54, p. 26). Ms. Davidson’s
first offense, pushing a student against the wall and causing a cut lip, was severe,
but the Board’s treatment of Ms. Davidson was consistent with its treatment of Mr.
Bragg and Mr. Thompson because the Board administered a lighter punishment for
her first offense. Ms. Davidson’s second offense, grabbing a student by the arm
and calling her a brat, is less severe than the evidence of misconduct on which Dr.
Wardynski relied in proposing Mr. Bragg’s termination. Therefore, Mr. Bragg has
not demonstrated that the Board treated similarly situated employees different
because of their age.
The Court recognizes that the school trained and required Mr. Bragg to
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restrain children when necessary, and he necessarily had to raise his voice as a
coach and P.E. aide. Materials in the record show that students, parents, and
supervisors appreciated Mr. Bragg throughout his 19-year tenure at Montview. He
clearly did not intend to hurt the child whom he lifted off of the ground. And DHR
concluded that he did not engage in child abuse or neglect.
Still, that said, as a matter of law, Mr. Bragg was not constructively
discharged under the ADEA. Even if he was, he has not satisfied his burden to
show pretext. Even accepting that Mr. Bragg did not lift the student by her neck,
that Mr. Bragg did not cause the student’s neck injury, and that the February and
April allegations are false, Dr. Wardynski still relied on the following objective
evidence in proposing Mr. Bragg’s termination: Mr. Bragg lifted a student off of
the ground; Mr. Bragg had twice before been instructed to maintain a “hands-off”
approach to students; he reported in two written statements that he lifted the
student by her neck; he lied and said he did not lift the student in his interview with
Ms. Williams; Ms. Moore-Smith stated that she witnessed Mr. Bragg lift the
student by her neck; and the nurse reported that the student’s neck was injured
shortly after the incident. Mr. Bragg has not created a convincing mosaic of
circumstantial evidence that casts doubt on these reasons for his proposed
termination.

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IV.

CONCLUSION
Based on the foregoing, the Court DENIES the Board’s motion to strike

(Doc. 59) and GRANTS the Board’s motion for summary judgment (Doc. 45).
The Court will enter a separate judgment in favor of the Board.
DONE and ORDERED this September 26, 2018.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

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