Rhodes v. Tuscaloosa County Board of Education

Filing 27

MEMORANDUM OPINION. Signed by Chief Judge Sharon Lovelace Blackburn on 3/24/2013. (KAM, )

FILED
2013 Mar-25 AM 09:54
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
NANCY N. RHODES,
Plaintiff,
vs.
TUSCALOOSA COUNTY BOARD OF
EDUCATION,
Defendant.

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CASE NO. 7:10-CV-02164-SLB

MEMORANDUM OPINION
This case is presently pending before the court on defendant’s Motion for Summary
Judgment, (doc. 17),1 and its Motion to Strike, (doc. 25). Plaintiff Nancy N. Rhodes has sued
her employer, defendant Tuscaloosa Board of Education, alleging that defendant
discriminated against her on the basis of her association with her disabled son and that it
retaliated against her for complaining about discrimination. Upon consideration of the
record, the submissions of the parties, the arguments of counsel, and the relevant law, the
court is of the opinion that defendant’s Motion to Strike, (doc. 25), is due to be granted in
part and denied in part, and its Motion for Summary Judgment, (doc. 17), is due to be
granted.

1

Reference to a document number, [“Doc. ___”], refers to the number assigned to each
document as it is filed in the court’s record.

I. MOTION TO STRIKE
A. STANDARD OF REVIEW
“A district court has broad discretion in determining the admissibility of evidence”
on a motion for summary judgment. Hetherington v. Wal-Mart, Inc., No. 12-13684, 2013
WL 811744, *1 (11th Cir. Mar. 5, 2013)(citing Equity Lifestyle Props., Inc. v. Fla. Mowing
& Landscape Serv., Inc., 556 F.3d 1232, 1243 (11th Cir. 2009)). The Supreme Court has
held the nonmoving party is not required to “produce evidence in a form that would be
admissible at trial in order to avoid summary judgment.” Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986)(emphasis added). The Eleventh Circuit has “read this statement as simply
allowing otherwise admissible evidence to be submitted in inadmissible form at the
summary judgment stage, though at trial it must be submitted in admissible form.”
McMillian v. Johnson, 88 F.3d 1573, 1584 (11th Cir. 1996)(citing Offshore Aviation v.
Transcon Lines, Inc., 831 F.2d 1013, 1017 (11th Cir. 1987))(emphasis in McMillian). In
determining whether evidence is otherwise admissible, the court applies the same rules and
standards as it would at trial. See Munoz v. International Alliance of Theatrical Stage Emp.
and Moving Picture Machine Operators, 563 F.2d 205, 207 n.1 (5th Cir. 1977)(“[For] the
most part, admissibility of evidence on a motion for summary judgment is subject to the
general rules relating to form and admissibility at trial.” )(citations omitted).2

2

Decisions of the former Fifth Circuit Court of Appeals rendered prior to October 1,
1981, constitute binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661
F.2d 1206, 1209 (11th Cir.1981) (en banc).
2

“The general rule is that inadmissible hearsay cannot be considered on a motion for
summary judgment.”

Macuba v. Deboer, 193 F.3d 1316, 1322-1325 (11th Cir.

1999)(footnote, internal quotations and citations omitted). However, a district court may
consider a hearsay statement in passing on a motion for summary judgment if the statement
could be reduced to admissible evidence at trial.” Id. at 1323 (citations and internal
quotations omitted).
[T]he phrases “reduced to admissible evidence at trial” and “reduced to
admissible form” [are used] to explain that the out-of-court statement made to
the witness (the Rule 56(c) affiant or the deposition deponent) must be
admissible at trial for some purpose. For example, the statement might be
admissible because it falls within an exception to the hearsay rule, or does not
constitute hearsay at all (because it is not offered to prove the truth of the
matter asserted), or is used solely for impeachment purposes (and not as
substantive evidence).
Id. at 1323-24 (footnotes omitted).
The court does not consider unsworn statements. Dudley v. City of Monroeville, 446
Fed. Appx. 204, 207 (11th Cir. 2011)(“Unsworn statements do not meet the requirements of
Rule 56, so the district court could not – and properly did not – rely on the content of the
citizen’s [unsworn] statement. (citing Carr v. Tatangelo, 338 F.3d 1259, 1273 n. 27 (11th
Cir.2003));3 see, e.g., Adickes v. S. H. Kress & Co., 398 U.S. 144, 158 n.17 (1970)(unsworn
statement did not meet the requirements of former Rule 56(e)); Arthur v. King, 500 F.3d

3

Eleventh Circuit Rule 36-2 provides, in pertinent part, “An opinion shall be
unpublished unless a majority of the panel decides to publish it. Unpublished opinions are
not considered binding precedent, but they may be cited as persuasive authority.” 11th Cir.
R. 36-2.
3

1335, 1343 (11th Cir. 2007)(district court did not abuse its discretion in refusing to consider
an unsworn affidavit on a motion to alter or amend the judgment (citing Holloman v.
Jacksonville Housing Auth., No. 06-10108, 2007 WL 245555, *2 (11th Cir. Jan. 30, 2007)
(quoting Gordon v. Watson, 622 F.2d 120, 123 (5th Cir. 1980))); Oglesby v. Terminal
Transport Co., Inc., 543 F.2d 1111, 1112 (5th Cir. 1976)(court refused to consider unsworn
affidavit in response to a motion for summary judgment).
B. DISCUSSION
1. Darlene Webb Letters – Plaintiff’s Exhibit 6 (Doc. 22-7)
Defendant contends, “Exhibit 6 consists of two letters written by Darlene Webb. The
letters consist of material that is neither material nor relevant to this matter and of hearsay.”
(Doc. 25 at 1 [citing doc. 22-7 at 2-3].) At the time she wrote the letters, Webb was a CNP
Worker at Taylorville Primary School.4 (Doc. 17-7 at 87.) In these letters, Webb states that
Stanley Hord, CNP Director, told her plaintiff “was a bad influence and a real
[troublemaker], and . . . she had gotten herself on everybody’s list.” (Doc. 22-7 at 2; see also
id. at 3 [“Mr. Hord told me [plaintiff] was trouble and a bad influence. He said as long as
I run with trouble I would be considered trouble and I would not be getting any job.”].)
Specifically, the first letter, written on August 14, 2008, states:
At around 11:45 my manager . . . came to me and told me Mr. Hord wanted to
talk to me in [my manager’s] office. I went to her office and sat down. Mr.
Hord began to talk to me about the hiring of managers over the summer. He

4

“CNP” stands for “Child Nutrition Program.” (See doc. 22-10 at 8.)
4

said the lady at Lakeview was hired because she had 15 years of experience in
child nutrition in Jefferson County. I replied to him “you never said that to
me, you just said she lives right here.[”] I then said well I don’t live far from
there. The he said she lives right there!
I then said “I thought that other position that came up I had done well at the
interviews.[”] Mr. Hord told me because I smoked and did not present myself
well was why I was not chosen. Then he told me that the work at the
university was not up to his standard. I replied by saying they must be up to
the [fraternity’s] standards because they have asked me for over a year to quit
the school and take over the kitchen there. This is when he became red faced
and appeared angry. Then he said and I quote “If you repeat what I am about
to say to you, I will come back here and strangle you with my bare hands.”
Then he went on to talk about an employee (Nancy Rhodes). He said she was
a bad influence and a real [troublemaker], and how she had gotten herself on
everyone’s list. If I continue to associate with her I would be put in the same
position and would never go anywhere. He said you know what I’m saying
when I say if you have one bad child those that run with him are considered
bad too. I replied I consider myself better than that and try to judge people on
their merits. He replied you better listen to what I am saying.
The subject changed to manager classes and other classes that were offered to
some but not everyone – I am referring to the hand picked few employees for
processing free and reduced forms – I said I did not feel this was right. He
replied since he found out after school he just picked a few.
After feeling his anger and the fact he was trying to intimidate [me] and he had
already physically threatened me, I decided to stop the conversation and go
back to work.
After processing the event later that afternoon, it occurred to me that this
happened last year and was taking place again this year. So he knew before
school was out.
(Doc. 22-7 at 2.)

5

In her second letter, addressed to the EEOC investigator5 and dated November 11,
2008, Webb wrote:
Nancy Rhodes informed me you wanted clarification about the discussion
between Mr. Stanley Hord and me regarding the statement where Mr. Hord
told me Nancy was trouble and a bad influence. He said as long as I run with
trouble I would be considered trouble and I would not be getting another job.
Mr. Hord asked me to end a ten-year long friendship with Nancy if he was
going to allow me to get a job as a manager anywhere in the county school
system.
(Id. at 3.) These letters are not sworn and the record contains no other sworn testimony from
Webb.
In his deposition, Hord testified that he had a conversation with Webb, wherein he
discussed her association with plaintiff. (Doc. 17-7 at 89-95.) He denied making any
statement to Webb about ending her friendship with plaintiff; however, he testified he had
probably told Webb that plaintiff was a “bad influence” and a troublemaker (Id. at 89, 91,
94.) He testified that plaintiff “stirs up stuff,” and he had told Webb that “they didn’t need
to talk about what they served that day or what somebody else did or who went where or
whatever,” and that “they needed to take care of their in-house business and leave it there.”
(Id. at 93.) He testified:
[W]hat I was trying to say to her – and one of the problems they had in the
kitchen is they would take stuff from Taylorville and talk to everybody in the
world, including [plaintiff]. And one of the things was to try to get them out
of the grapevine, so to speak, that . . . she needed to leave that kind of stuff

5

See doc. 22-14 at 6, 7.
6

alone or else she was going to cause a problem between her and other
managers.
. . . [I]f you want to move somewhere, if you are considered a busybody, you
are not going anywhere; . . . you are going to be stuck there . . . and that was
the basis of the conversation.
...
. . . I’m not asking anybody to end their friendship, it’s just a matter of
leave stuff alone.
(Id. at 90-91, 94.)
Plaintiff contends, “Webb’s letters are relevant because they make it more probable
that the Defendant failed to promote her because of her association with, and advocacy of,
her disabled son.” (Doc. 26 at 2.) Nothing in the letters suggests that Hord considered
plaintiff a troublemaker or a bad influence because of her son’s disability and/or because of
her advocacy on his behalf or her EEOC charges. Indeed, Hord denied that his conversation
with Webb had anything to do with plaintiff’s advocacy for her son or retaliation. (Doc. 17-7
at 95.)
The court will not consider the unsworn statements contained in Webb’s letters.
Therefore, defendant’s Motion to Strike plaintiff’s Exhibit 6 will be granted. Nevertheless,
to the extent that Hord testified regarding the incident, the court has considered evidence of
the meeting between Webb and Hord.

7

2. EEOC Letter – Exhibit 13 (Doc. 22-14)
Defendant has moved to strike a letter, dated January 27, 2009, from Jeanne Walker,
an Investigator with the EEOC, to defendant’s counsel, (see doc. 22-14 at 5-6), on the
grounds that the letter contains hearsay statements and conclusory statements not supported
by evidence, (doc. 25 at 1-2). The letter to defendant’s counsel is not a determination letter;
rather, it indicates that it is a summary of “the evidence gathered and analyzed to this point
in the investigation.” (Doc. 22-14 at 5, 6.) It states:
Evidence indicates that the transfer policy provides as follows: “The Board,
upon the recommendation of the Superintendent, shall have the authority to
transfer classified personnel from one position to another when such transfers
are in the best interest of the school system.” The evidence indicates that it
was a pretext not to transfer Charging Party to a position closer to home
because she filed a charge of discrimination and she complained about the way
the Board was handling her complaints. Evidence indicates that [after]
Charging Party filed her first charge on April 6, 2007, Charging Party was
accused of sending an inappropriate e-mail on October 13, 2006;6 however, the
evidence indicates that the e-mail did not originate from Charging Party’s
computer.7 Evidence indicates that Respondent was aware that many
employees were sending inappropriate information through e-mails. A
meeting was conducted to discuss the matter and employees were informed
that such conduct would have to end. The evidence indicates that Charging
Party was retaliated against because she filed a charge of discrimination.
There is no finding made with respect to Charging Party’s allegation that she
was discriminat[ed] against because she had a child with a disability.
(Id. at 5 [footnotes added].)

6

Plaintiff was accused in October 2007 of forwarding an offensive email dated
October 6, 2006.
7

The email was forwarded by plaintiff to other employees. (Doc. 17-8 at 30.) The fact
that plaintiff did not create the email is irrelevant.
8

The court assumes that the standards for determining whether an EEOC determination
is admissible govern consideration of whether the pre-determination letter is admissible.
“[A]n EEOC determination may be admissible evidence in a jury trial so long as it is not
unduly prejudicial.” Keaton v. Cobb County, 545 F. Supp. 2d 1275, 1310 (N.D. Ga.
2008)(citing Walker v. NationsBank, 53 F.3d 1548, 1554-55 (11th Cir. 1995)). Also, “the
admissibility of EEOC findings is subject to the sound discretion of the district court, and a
court can refuse to admit an EEOC report if it contains legal conclusions in addition to its
factual content, or if it presents issues of trustworthiness. Hetherington, 2013 WL 811744
at *1 (citing Barfield v. Orange County, 911 F.2d 644, 650 (11th Cir. 1990)). However, on
a Motion for Summary Judgment:
[A] district court is “not required to defer or make reference to the EEOC
determination” in its opinion deciding summary judgment and therefore, is not
required to find the determination creates an issue of material fact. See
Kincaid v. Bd. of Trs., 188 Fed. Appx. 810, 817 (11th Cir. 2006) (citing Moore
v. Devine, 767 F.2d 1541, 1549-51 (11th Cir. 1985), modified on reh’g, 780
F.2d 1559, 1560 (11th Cir. 1986)). It is the Court’s, not the EEOC
investigator’s, duty to determine whether issues of material fact exist. Walker,
53 F.3d at 1554-55; Williams v. Ala. Indus. Dev’t Tr’g, 146 F. Supp. 2d 1214,
1224 (M.D. Ala. 2001). As a result, an EEOC determination “letter is suitable
for framing but does not create an issue of fact.” Williams, 146 F. Supp. 2d at
1224; see also Coleman v. Quaker Oats Co., 232 F.3d 1271, 1283 (9th Cir.
2000)(“Nor does the EEOC reasonable cause determination create a genuine
issue of material fact.”).
Keaton, 545 F. Supp. 2d at 1310-11; see also Muhammad v. Audio Visual Services Group,
380 Fed. Appx. 864, 874 (11th Cir. 2010).

9

The court denies the defendant’s Motion to Strike the pre-determination letter. The
letter is part of the packet of EEOC documents submitted by plaintiff as Exhibit 13. (Doc.
22-14.) The letter has sufficient indicia of authenticity and the parties do not dispute the fact
that the EEOC found cause. (See id. at 5-6, 8-9.) However, the court finds the predetermination letter does not establish a question of fact regarding plaintiff’s retaliation and
its statement, “The evidence indicates that Charging Party was retaliated against because she
filed a charge of discrimination,” (doc. 22-14 at 5), is not supported by recitation of any
evidence that the decision-makers were aware that plaintiff had filed EEOC charges, see,
supra.
3. Handwritten Notes – Exhibit 15 (Doc. 22-16 at 5)
Plaintiff’s Exhibit 15 contains a page of handwritten notes. (See doc. 22-16 at 5.)
Defendant asks the court to strike these notes because the author of the notes is not evident
from the record. (Doc. 25 at 2.) Plaintiff does not oppose the Motion to Strike this page of
her Exhibit 15. (See generally doc. 26.) Therefore, defendant’s Motion to Strike page 5 of
Plaintiff’s Exhibit 15 will be granted. The court has not considered this page of handwritten
notes in deciding defendant’s Motion for Summary Judgment.
4. Email from Plaintiff to Hord – Exhibit 19 (Doc. 22-20 at 3)
Defendant asks the court to strike the portion of plaintiff’s Exhibit 19 containing
plaintiff’s email of May 27, 2008, addressed to Hord, (doc. 22-20 at 3-4), on the ground that
“[t]he email contains self[-]serving statements written by Plaintiff and is riddled with hearsay

10

that is inadmissible pursuant to Rule 802, Federal Rules of Evidence.” (Doc. 25 at 3.) The
email states:
I have put a lot of thought into our discussion on Wednesday, May 21, 2008
at 1:50. When you told me what I have done flows over into my job, I just
cannot understand or believe that you as a person would want me to be a bad
mother. You say I do a great job but it is the other stuff. Well God gave me
Derrick because he [k]new that I would fight for his rights and take care of
[H]is child. . . . I appreciate the fact that you notice I do a good job and I am
not perfect. I am sure that I do make mistakes[,] but it really bugged me that
you said that you have only 50% of the vote and even if you pulled for me that
[Costanzo] would kill it before it reach[ed] the board to vote on. This just tells
me that he is in . . . power and the people under him don’t stand up for what
they believe. Whether you ever [decide] to stand up and fight for your
managers who give you their all is up to you. I will continue to do a good job.
I do remember why I took the job and what I love about it is the children. I
will not play these games by kissing up to everyone; not what I am here for.
Maybe William [Tunnell]8 is right and one day when Frank Costanzo is no
longer superintendent people will begin to do what is right and not what is
easy for them. Maybe one day they will remember why they have a job and
who they really serve – THE CHILDREN. Thanks for the compliments on my
pie. That is the quality I strive for everyday that I am cooking for the children.
Thanks again for listening to my thought[s] about what you had to say, maybe
one day I can be rewarded for all my hard work instead of being punished for
being a mother.
(Doc. 22-20 at 3 [footnote added].)
“[M]ere conclusions and unsupported factual allegations, as well as affidavits based,
in part, upon information and belief, rather than personal knowledge, are insufficient to
withstand a motion for summary judgment.” Ellis v. England, 432 F.3d 1321, 1327 (11th
Cir. at 2005)(citing Pace v. Capobianco, 283 F.3d 1275, 1278-79 (11th Cir. 2002) and Bald

8

William Tunnell is the AEA UniServ Director. (Doc. 17-1 at 177.)
11

Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir.1989)). Therefore, what
plaintiff “believes” about herself or about the motivations of Costanzo and Hord is not
considered evidence of their motivation.
Plaintiff contends that the email should be considered as Hord’s statements are
admissible under Fed. R. Evid. 801(d)(2)(D) as an admission by a party opponent. However,
plaintiff does not argue that the email – her own out-of-court statement – or the statement
of William Tunnell are admissible testimony. See Zaben v. Air Products & Chemicals, Inc.,
129 F.3d 1453, 1456 (11th Cir. 1997)(“Under the federal rules, hearsay within hearsay is not
excluded under the hearsay rule if each part of the combined statements conforms with an
exception to the hearsay rule provided in these rules.” (quoting Fed. R. Evid. 805))(internal
quotations omitted); see, e.g., United Technologies Corp. v. Mazer, 556 F.3d 1260, 1278
(11th Cir. 2009).
The court will grant defendant’s Motion to Strike and has not considered the email in
deciding defendant’s Motion for Summary Judgment. Nevertheless, the court notes that both
Hord and plaintiff testified as to their conversation on or about May 21, 2008, and the court
has considered this testimony.
C. CONCLUSION
For the reasons set forth above, defendant’s Motion to Strike, (doc. 25), will be
granted in part and the court will not consider Webb’s letters, (doc. 22-7 at 2-3), the page of
handwritten notes, (doc. 22-16 at 5), and plaintiff’s email to Hord, (doc. 22-20 at 3). The

12

Motion to Strike, (doc. 25), will be denied as the EEOC pre-determination letter, (doc. 22-14
at 5-6).
II. MOTION FOR SUMMARY JUDGMENT
A. SUMMARY JUDGMENT STANDARD
Pursuant to Fed. R. Civ. P. 56(a), summary judgment is appropriate “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); Clark v. Coats & Clark, Inc., 929 F.2d
604, 608 (11th Cir. 1991); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Once
the moving party has met its burden, the non-moving party must go beyond the pleadings and
show that there is a genuine issue of fact for trial. See Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986). A dispute is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
A party asserting that a fact cannot be or is genuinely disputed must support
the assertion by:
(A) citing 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; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.

13

Fed. R. Civ. P. 56(c)(1); see also Clark, 929 F.2d at 608 (“it is never enough simply to state
that the non-moving party cannot meet its burden at trial”).
In deciding a motion for summary judgment, the court’s function is not to “weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine
issue for trial.” Anderson, 477 U.S. at 249. “[C]ourts are required to view the facts and draw
reasonable inferences ‘in the light most favorable to the party opposing the [summary
judgment] motion.’” Scott v. Harris, 550 U.S. 372, 378 (2007)(quoting United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962)(per curiam)). Nevertheless, the non-moving party
“need not be given the benefit of every inference but only of every reasonable inference.”
Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999)(citing Brown v.
City of Clewiston, 848 F.2d 1534, 1540 n.12 (11th Cir. 1988)); see also Scott, 550 U.S. at
380 (“When opposing parties tell two different stories, one of which is blatantly contradicted
by the record, so that no reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for summary judgment.”).
B. STATEMENT OF FACTS9
Plaintiff Nancy N. Rhodes is employed as a CNP Manager by defendant Tuscaloosa
County Board of Education. (Doc. 17-1 at 60.) She began working for defendant as a CNP

9

As required when determining a Motion for Summary Judgment, the court has
construed the facts in the light most favorable to plaintiff, the non-moving party. All
disputed facts are resolved in her favor, and all reasonable inferences arising from those facts
are drawn in her favor. Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89 (1990);
Zaben v. Air Products & Chemicals, Inc., 129 F.3d 1453, 1455 (11th Cir,. 1997).
14

Worker in 1999, and defendant promoted her to CNP Manager at Buhl Elementary School
in 2002. (Doc. 17-1 at 15, 56-57, 60-61.) Buhl Elementary has the fewest number of
students in defendant’s system. Following her promotion, plaintiff applied for transfers to
a school closer to her home. (See id. at 64, 67, 155-58.) Because Buhl was the smallest
school in the system, a transfer to another school, with more students, would have resulted
in a pay increase. (Id. at 153.)
Plaintiff’s son is disabled and is a student in the Tuscaloosa County School System.
(Doc. 17-1 at 13-14, 23.) In the past, plaintiff has advocated on behalf of her son in IEP10
meetings, and, between 2001 and 2004, she filed a due process claim and state complaints
over disagreements pertaining to his education. (Doc. 17-1 at 29, 34, 37, 41, 51-52, 93-94;
doc. 17-8 at 29-30.) Superintendent of the Tuscaloosa County Schools, Frank Costanzo, was
aware that plaintiff’s son was disabled and that she had filed due process claims and state
complaints regarding his education, although he did not participate in those proceedings.
(Doc. 17-8 at 19-20, 29-30.) Hord testified that he did not know anything specific about
plaintiff’s advocacy for her son. (See doc. 17-7 at 26-29.) Plaintiff did not file a state

10

“IEP” or “individualized education plan” “is an education plan tailored to a child’s
unique needs that is designed by the school district in consultation with the child’s parents
after the child is identified as eligible for special-education services.” Forest Grove School
Dist. v. T.A., 557 U.S. 230, 234 and n.1 (2009)(citing 20 U.S.C. §§ 1412(a)(4), 1414(d)).
Under the Individuals with Disabilities Education Act [IDEA] “all children with disabilities
have available to them a free appropriate public education [FAPE].” 20 U.S.C. §
1400(d)(1)(A). “To ensure that each disabled child is receiving a FAPE, school districts
must create an IEP for each student.” K.I. ex rel. Jennie I. v. Montgomery Public Schools,
805 F. Supp. 2d 1283, 1290 (M.D. Ala. 2011)(citing 20 U.S.C. § 1414(d)).
15

complaint or due-process claim relating to her son’s IEP between 2003 and August of 2008;
however, she advocated for her son “in-house.” (Doc. 17-1 at 93-94, 127-29.) Although he
was aware plaintiff had filed state complaints and due-process claim regarding her son,
Costanzo had no interactions with plaintiff in terms of her son in his role as Superintendent.
(Doc. 17-8 at 20-21, 29-30.)
At the end of the 2003 school year, Costanzo, then the Assistant Superintendent,
delivered a letter to plaintiff’s home informing her that she had not been renewed for the
2003-2004 school year. (Doc. 17-1 at 87-88.) No one was at home, so Costanzo left the
letter taped to plaintiff’s door, which plaintiff testified was “tacky.” (Id.) She told Hord that,
“if [she] had been there, [she] would have kicked Dr. Costanzo in the balls,” and that “it
[was] a good thing that the [gun] safe was locked because [she] would [have] run him off
[her] property.” (Id. at 88-89.) Hord told Costanzo about plaintiff’s statements. (Doc. 17-7,
def. ex. 1 at 38; doc. 17-8 at 23, 26.) Costanzo met with plaintiff and gave her a verbal
reprimand for threatening another employee. (Doc. 17-8 at 23-24.) During the meeting,
plaintiff apologized. (Id. at 26.)

Plaintiff was not terminated and returned to her position

as CNP Manager at Buhl. (Id. at 85-86, 91.)
In 2001, 2007, and 2008, plaintiff filed grievances with defendant. (Doc. 17-1 at 3940, 159-60, 160-61, 170, 230-31; doc. 17-8 at 66-67.)
In May or June of 2001, she filed a grievance “against Lex Smith trying to tie my job
into my son’s education.” (Doc. 17-1 at 40.) According to plaintiff, Hord called her and told

16

her that Smith, then the Director of Special Education, had visited Hord’s office and told
Hord “that there was an IEP meeting that afternoon;” Hord told plaintiff to be nice to Smith
and “when you go to your meeting this afternoon, do not ask for inclusion” for her son. (Id.
at 27.) Plaintiff filed the grievance “because there was no reason for [Smith] to talk to
[Hord] about [her] child.” (Id. at 40.) Soon after she filed the grievance, Hord told plaintiff
“that [she] needed to watch what [she] was doing because he didn't want to be made to do
something that he didn’t want to do.” (Id. at 41.) However, Hord did not say directly that
plaintiff’s son and his special needs affected plaintiff’s job. (Id. at 43-44.)
The 2007 grievance concerned defendant hand-picking CNP employees to perform
extra work for extra pay and hiring procedures. (Doc. 17-1 at 159-62.) Plaintiff did not
testify that this grievance complained about discrimination. (See id.) Neither party has filed
this grievance in the record.
The 2008 grievance, which plaintiff filed along with other employees, concerned the
same allegations that defendant failed to follow and enforce its own policies regarding
selection and training, and claims that defendant selected employees for training and
promotions based on favoritism. (Id. at 231-32.) Plaintiff did not allege that defendant’s
favoritism was discriminatory. Hord testified that he was not aware of plaintiff’s grievances
except one filed “a year or two” before his deposition, which was taken in October 2011.
(Doc. 17-7 at 28-29.)

17

According to defendant’s policy, when a CNP Manager position becomes vacant, the
vacancy is posted on defendant’s website, at its offices and at the school. (Doc. 17-8 at 60;
doc. 17-2 at 21.) Anyone interested in the vacant position can submit a letter of interest to
defendant or to the school’s principal. (Doc. 17-8 at 43, 60.) Also, a current employee may
submit a request for transfer to that position. (Id. at 60-61.) An employee submitting a
request for transfer is not automatically entitled to a transfer, but she is interviewed and
considered with all other applicants. (Id. at 61; see doc. 17-1 at 162-64.)
After all applications are submitted, interviews are scheduled for the position. (Doc.
17-8 at 61-62.) The interviewers score the applicants based on their responses to each
question. (Doc. 17-7 at 32; doc. 17-8 at 62-63.) After the interviews are completed, the
scores for each applicant are averaged. (Doc. 17-8 at 63; doc. 17-7 cites.)
The principal notifies the Human Resources Department in writing of his or her
recommendation. (Doc. 17-8 at 15, 63-64.) The Human Resources Department reviews the
recommendation and determines if the applicant meets the minimum qualifications. (Id. at
15.)

If so, the Human Resources Department forwards the recommendation to the

Superintendent for his review. (Id.) The Superintendent determines whether to recommend
the applicant to the Board. (Id.) If he recommends the applicant, the Board votes on the
recommendation. (Id. at 44.) If the Board approves the recommendation, the applicant is
employed. (Id.)

18

Costanzo supervises the principals; he also participated in interviews and hiring
decisions for vacant principal positions. (Doc. 17-8 at 14-16.)
In February 2007, the position of CNP Manager at Maxwell Elementary School was
available. (Doc. 17-1 at 129-30.) Plaintiff testified that she spoke with Principal Brenda
Rickett, who told plaintiff that, because plaintiff’s son was no longer a student at Maxwell
Elementary, Rickett would “definitely consider” plaintiff for the position. (Id. at 130-31.)
Plaintiff applied for a transfer, but she was not selected for the position. (Id. at 131.)
Costanzo did not discuss plaintiff with Rickett. (Doc. 17-8 at 65.)
She filed her first EEOC charge following her non-selection. (Doc. 17-1 at 149.)
This EEOC charge stated:
I have a child with a disability who is enrolled in the Tuscaloosa County
school system. I was hired by the Tuscaloosa County school system in August
1999, as a child nutrition program worker. I was promoted to manager in
2002. During my tenure of employment, I have filed complaints under the
Americans with Disabilities Act against the school system on behalf of my
child. The last complaint was filed in 2003. Since filing the complaints, I
have been denied promotions to five positions. I was denied a promotion to
manager of another location on February 12, 2007. The position was filled by
a less-qualified individual.
No reason was given for me not being selected for the position.
I believe that I was not promoted because of my association with an individual
with a disability and in retaliation for filing complaints under the Americans
with Disabilities Act in violation of the Americans with Disabilities Act of
1990.

19

(Doc. 17-1 at 71.) Costanzo was aware of the charge. (Doc. 17-8 at 33.) Hord testified he
was unaware of plaintiff’s EEOC charge until 2011, when he was preparing for his
deposition. (Doc. 17-7 at 29.)
In August 2007, the position of CNP Manager at Hillcrest High School became
vacant. (Doc. 17-1 at 181, L. 13-15; doc. 17-9 at 13-14.) Plaintiff and others applied for the
position. (Doc. 17-1 at 181; doc. 17-7 at 60; doc. 17-9 at 26.) Principal Jeff Hyche, his
assistant principals, and Hord interviewed the applicants, including plaintiff. (Doc. 17-1 at
181-83; doc. 17-7 at 31; doc. 17-9 at 15; doc. 17-10.) Hord did not actively participate in the
interviews. (Doc. 17-9 at 15-16.) Following the interviews, Hyche met with his assistants
and Hord, and they tallied their scores. (Doc. 17-9 at 22; doc. 22-3 at 32; doc. 17-10 at 3.)
Darlene Hupp received the highest average interview score. (Doc. 17-7 at 40.) Hyche gave
her a score of 53 and plaintiff a score of 51. (See doc. 22-19 at 2, 4.) Hord gave plaintiff a
score of 29 and Hupp a score of 54. (Id. at 3,5.) The scores of the assistant principals are
not in the record. (See generally id.) Hyche testified that he ultimately made the final
decision to recommend Hupp. (Doc. 17-9 at 23, 31.) Hyche recommended Hupp for the
CNP Manager position. (Doc. 17-7 at 40; doc. 17-9 at 31.) This recommendation was
submitted by Costanzo to the Board, and the Board approved Hupp for the Hillcrest High
School CNP Manager position.
Prior to being selected for the CNP Manager position, Hupp had served as the interim
CNP Manager at Hillcrest High School for several months during the previous school year.

20

(Doc. 17-9 at 31-32; doc. 17-10.) At that time, plaintiff had been the CNP Manager at Buhl
Elementary School for five years. (Doc. 22-5). Hillcrest High School has 1,000 students and
14 CNP workers; plaintiff supervised only 2 CNP workers at Buhl Elementary, which has
the lowest number of students, 160-200.11 (Doc. 17-1 at 153; doc. 17-7 at 42.) Hyche
testified that Hupp had done a good job as interim CNP Manager and she had no problems
during her tenure. (Doc. 17-9 at 34, 36, 37; doc. 17-10.) He testified Hupp had a good
working relationship with the staff in the Hillcrest High School cafeteria; and all the cafeteria
workers had asked him to hire Hupp as the permanent CNP Manager. (Doc. 17-9 at 37-38;
doc. 17-10.).
Hyche did not know plaintiff before she applied for the position at his school. (Doc.
17-9 at 26.) He did not know plaintiff had a special-needs child until some time after he
made his hiring decision. (Doc. 17-9 at 26-27, 39; doc. 17-10.) Also, he did not know
plaintiff had filed an EEOC complaint until after he made his hiring decision. (Doc. 17-9 at
33-34; doc. 17-10.) He testified that neither Costanzo nor Hord attempted to influence his
hiring decision in any way and that neither discussed plaintiff with him. (Doc. 17-9 at 23-24,
30, 39-40, doc. 17-10; see also doc. 17-7 at 46-47, 108; doc. 17-8 at 65.)

11

Hord testified that plaintiff had “run off” two long-term employees after her first
year at Buhl and that there were seven different employees for the two positions over the
seven years she was at Buhl. (Doc. 17-7 at 35.) At his deposition in October 2011, he
testified that, since 2009, there had been 100% employee turnover in the CNP Workers under
plaintiff’s supervision, and, since 2002, there had been 350% employee turnover in CNP
Workers under plaintiff’s supervision. (Id. at 44.)
21

Hord testified that he did not know plaintiff had filed an EEOC charge. (Doc. 22-3
at 29, 47-48.) However, he was aware that plaintiff’s son has a disability.
After Hupp was hired as the CNP Manager, plaintiff went to Hillcrest High School
to ask Hupp “what she [had] supplied to the County Board to apply for that position.” (Doc.
17-1 at 188.) Plaintiff testified that she has called other applicants to determine what they
had submitted and if “everybody was being treated the same.” (Id. at 191-92.) She was
questioned about asking Hupp her age, which plaintiff denied. (Id. at 187.) Nevertheless,
she testified she would have asked that question, “because another manager wanted to know
how old other people were,” and this other manager thought age was an issue in hiring. (Id.
at 187-88.)
The EEOC issued plaintiff a Dismissal and Notice of Rights on September 4, 2007.
(Doc. 17-1 at 72.) Plaintiff did not file a Complaint within 90 days of receiving her Notice
of Rights. However, the following day, on September 5, 2007, plaintiff filed a second EEOC
charge. (Id. at 73.) This charge stated:
I have a child with a disability who is enrolled in the Tuscaloosa County
school system. I was hired by the Tuscaloosa County school system in August
1999, as a Child Nutrition Program Worker. During my tenure of
employment, I have filed complaints under the Americans with Disabilities
Act against Respondent on behalf of my child. During the week of August 10,
2007, I submitted an application and other documentation requested by the
Respondent in applying for the position of Child Nutrition Manager (CNP
Manager) at Hill Crest [sic] High School. This position would have been a
promotion. On August 17, 2007, I received a letter from Jeff Hyche, Principal
at Hill Crest [sic] High School[,] informing me that I was not selected for the
position.

22

No reason was given why I was not selected for the vacant position.
I believe that I was not promoted because of my association with an individual
with a disability under the Americans with Disabilities Act, in violation of the
Americans with Disabilities Act of 1990. I also believe that I have been
discriminated against by not being promoted in retaliation for protesting a
practice that is unlawful under the Americans with Disabilities Act and for
filing EEOC Charge 420-2007-02455 [plaintiff’s first EEOC Charge].
(Doc. 17-1 at 73.) Costanzo was aware of this charge. (Doc. 17-8 at 38-39.) Hord testified
he was unaware of either of plaintiff’s EEOC charges until 2011, when he was preparing for
his deposition. (Doc. 17-7 at 29.)
After plaintiff was not selected for the Hillcrest High School position, she filed a
grievance complaining about defendant’s hiring procedures. (Doc. 17-1 at 170-71.)
According to plaintiff’s deposition testimony, this grievance “had to do with hiring
procedures . . . plus a couple of other things.” (Id. at 170.) Also, according to plaintiff, she
believed this grievance had been resolved until Costanzo did not follow through on his
agreed changes to the hiring procedures. (Id. 177-78, 180.) The parties have not provided
the court with the grievance or the terms of the purported resolution. Nevertheless, plaintiff
does not contend that her grievance raised issues protected by the ADA.
Costanzo met with plaintiff concerning this grievance after the EEOC had issued
plaintiff a right-to-sue letter on her first EEOC charge. (Id. at 176.) After the meeting and
during a discussion of costs associated with plaintiff’s grievance, Costanzo asked Tunnell,
plaintiff’s union representative, “[D]o you know how much this one employee has cost the

23

system.”12 (Id. at 17-1 at 270.) Tunnell also told plaintiff that Costanzo did not like her. (Id.
at 142.)
Plaintiff alleges that, on or about May 21, 2008, “Hord had informed her that her
advocacy for her disabled child overflows into her employment with the Tuscaloosa County
Board of Education,” and that “Costanzo would kill [her selection] before it reach[ed] the
board to vote on.” (Doc. 22 at 17 [citing doc. 22-20].) As support for this fact, plaintiff
relies on statements she made in an unsworn email, which the court has stricken. Plaintiff
testified that Hord did not tell her that Costanzo had told him he would never recommend
plaintiff for another position. (Doc. 17-1 at 141-42.) Plaintiff testified that the comment,
“things you have done [have] affected you,” was made following her interview for the Davis
Emerson Middle School in 2003. (Id. at 133-34; doc. 17-7 at 77-78.) Hord testified he did
not remember saying that specifically, but he testified he had “tried to explain to [plaintiff]
to not be involved in some things [and to] attend to her business at home and leave everybody
else’s alone.” (Doc. 17-7 at 78.) According to Hord’s sworn testimony, the discussion had
nothing to do with plaintiff’s disabled son or her efforts on his behalf. (Id. at 79, 82.)
Moreover, he testified that his comments about Costanzo related to the strained relationship
between plaintiff and Costanzo after she threatened to kick him in the balls.

12

Costanzo testified that the comment was made during a discussion about costs and
attorney fees related to the grievance. (Doc. 17-8 at 50-51.) He testified that grievances “had
been a repetitive thing,” and “there was a high cost as a result.” (Id.)
24

Hord testified that he did not know plaintiff had filed EEOC charges. (Doc. 17-7 at
29, 47-48.)
During the spring and summer of 2008 the CNP Manager positions at Duncanville
Middle School, Englewood Elementary School, Matthews Elementary School, Hillcrest
Middle School, and Faucett-Vestavia Elementary School each became vacant. (Doc. 17-1
at 218-220, 223; doc. 17-2 at 15; doc. 17-3 at 13; doc. 17-4 at 13; doc. 17-5 at 11-12; doc.
17-6 at 11-12.) Plaintiff applied for each position. (Doc. 17-1 at 218.)
On or before May 19, 2008, plaintiff and other applicants interviewed for the CNP
Manager position at Hillcrest Middle School. (Doc. 17-1 at 219; doc. 17-5 at 12; see doc.
22-10 at 4.) The interviews were conducted by Principal C’Kimba Hobbs and Hord. (Doc.
17-1 at 219; doc. 17-5 at 12, 17-18; doc. 17-7 at 51.) Hord and Hobbs discussed the
interview process; Hobbs testified that he wanted guidance from Hord as to the type of
questions to ask. (Doc. 17-5 at 18.) After the interviews were completed, Hobbs and Hord
discussed the interviews, but Hord did not say anything to Hobbs about plaintiff. (Doc. 17-5
at 22-23.) Hobbs testified he was responsible for making the selection decision. (Id. at 24.)
Hord testified that their interview scores were averaged. (Doc. 22-3 at 56.) Sylvia White had
the highest interview score, followed by plaintiff and Heather Boatner, and Hobbs selected
White for the position. (Doc. 22-10 at 13.)
Hobbs stated that he found nothing particularly notable about plaintiff’s interview.
(Doc. 17-5 at 22.) He was familiar with plaintiff’s son because he had been his student.

25

(Doc. 17-5 at 12-13, 38-39.) However, he testified that he was not aware that plaintiff had
any complaints, including EEOC charges, against defendant. (Doc. 17-5 at 41-42, 48.) In
fact, he was not aware of any friction between plaintiff and anyone else in the school system.
(Doc. 17-5 at 39.)
Hobbs testified he considered White to be the most qualified candidate for the
position. (Doc. 17-5 at 49.) He knew White because she had worked in the lunchroom at
his school the entire time he had been there. (Doc. 17-5 at 24, 28-29, 49.) In fact, White had
worked for approximately 20 years at Hillcrest Middle School; she had never applied for
another position at another school. (Doc. 22-3 at 53-54.)
Hord did not tell Hobbs not to select plaintiff. (Doc. 17-5 at 45.) In fact, according
to Hobbs, Hord never said anything negative about plaintiff. (Doc. 17-5 at 42, 45, 49.)
Plaintiff contends that Hord gave Hobbs “input.” (Doc. 22 at 6 [citing doc. 17-5 at 18-22].)
However, Hobbs’s testimony does not support a finding that Hord had any influence over
Hobbs’s selection of White for the position.
Hobbs never had any discussions with Costanzo about plaintiff. (Doc. 17-5 at 43.)
Costanzo never told Hobbs not to select plaintiff, and he never said anything negative to
Hobbs that would influence his decision. (Doc. 17-5 at 45, 49-50.)
Hobbs recommended White for the CNP Manager position at Hillcrest Middle School
and the Board approved White’s selection.

26

On May 21 and 23, 2008, plaintiff and other applicants were interviewed for the
position of CNP Manager at Duncanville Middle School. (Doc. 17-1 at 218-19; doc. 17-2
at 22; doc. 22-10 at 10.) Principal Dorothy Dockery and Hord interviewed the applicants.
(Doc. 17-1 at 219; doc. 17-2 at 18; doc. 17-7 at 57.) Each applicant was asked the same
questions. (Doc. 17-2 at 60.) Dockery and Hord took notes during the interview and
discussed their scores afterwards. (Doc. 17-2 at 31-32.) Dockery testified Hord had input
into the decision but that she had made the final decision as to whom she would recommend.
(Doc. 17-2 at 32.)
On May 27, 2008, Dockery and Hord informed plaintiff that Heather Boatner had
been selected for the position; Hord testified Boatner was selected because she had the
highest interview score. (Doc. 17-2, ex. 4 at 25, ex. 12 at 34; doc. 22-3 at 59-60.) Her score
was obtained by combining the interview scores of Dockery and Hord. (Doc. 17-2 at 39-40;
doc. 17-7 at 59.) Hord testified that he did not remember discussing plaintiff with Dockery
and that he did not discuss Boatner, except to note that she had the highest averaged
interview score. (Doc. 17-7 at 58, 59-60.) Dockery testified Hord never said anything
negative about plaintiff and Costanzo never discussed plaintiff with her. (Doc. 17-2 at 6970.)
Dockery testified that she “had the discretion to choose the person that [she] felt like
best fit Duncanville Middle School,” and that she was not required to select the applicant
with the highest interview score, although the person selected, Boatner, had the highest

27

interview score. (Doc. 17-2 at 39.) Boatner had served as interim CNP manager at her
previous school for several months before applying for the position at Duncanville Middle
School. (Doc. 17-2 at 61-62.) Dockery testified that she had selected Boatner because:
during the interview process and getting to know [her], I liked her level of
energy, which I thought would bring newness to the whole school. But also
. . . I felt like she was qualified and would have an opportunity to advance.
She doesn’t live far from school and would be a community member, and
would be a vested part of the school in our community. But also in giving her
the opportunity to get a promotion, it wasn’t going to cause a domino effect in
any school.
(Doc. 17-2 at 71.) Duncanville Middle School opened in the 2008-2009 school year. (Id. at
13.) Although Dockery noted that plaintiff had “good energy,” she did not know where
plaintiff lived and selecting plaintiff would cause a domino effect among CNP Directors.
(Id. at 71, 73-74.) Hord testified that Boatner was very energetic, she was a hard worker, and
she has had little turnover. (Doc. 22-3 at 58-59.)
At the time of her recommendation, Dockery was unaware that plaintiff had filed any
sort of complaints against defendant, including her EEOC complaints. (Doc. 17-2 at 48-50,
52.) Dockery was aware that plaintiff’s son is disabled and had participated in IEP meetings
with plaintiff. (Doc. 17-2 at 50-51.) However, she was not aware of any friction between
plaintiff and any employee of defendant because of plaintiff’s son. (Doc. 17-2 at 51-52.) She
denied any friction between herself and plaintiff. (Doc. 17-2 at 52.)

28

Dockery recommended Boatner for the CNP Manager position at Duncanville Middle
School and her recommendation was approved by defendant. (Doc. 17-2 at 54, 58 and pl.
ex. 11.)
On or about June 27, 2008, plaintiff and others were interviewed for the CNP
Manager position at Faucett-Vestavia Elementary School. (Doc. 17-1 at 220; doc. 17-6 at
13 and pl. ex. 22; doc. 22-10 at 14.) The interviews were conducted by Principal Genea
Monroe and Hord. (Doc. 17-1 at 220; doc. 17-6 at 14-15; doc. 17-7 at 61; doc. 22-10 at 14.)
After the interviews were completed, Monroe gave the candidates a written question. (Doc.
17-6 at 16; doc. 17-1 at 220.) Then, the scores were added. (Doc. 17-6 at 24-25; doc. 17-7
at 64-65.) Monroe and Hord did not discuss the applicants. (Doc. 22-3 at 64.) Pam
Robinson received the highest score. (Doc. 17-6 at 26 and pl. ex. 22; doc. 22-10 at 14.)
Monroe decided to hire Robinson because she had the highest score. (Doc. 17-6 at
21.) She testified that she had decided Robinson was the best candidate because “[s]he came
highly recommended” by her principal and her CNP Manager. (Doc. 17-6 at 37.) Monroe
did not call plaintiff’s references. (Id.) Nothing in the record indicates that plaintiff
submitted references with her application. Hord testified that Robinson had an excellent
interview. (Doc. 22-3 at 64.) He also testified that she was hard working and outgoing. (Id.
at 62.)
Monroe testified that she knew plaintiff prior to the interview because she had been
an Assistant Principal at Englewood Elementary at the same time plaintiff worked at that

29

school. (Doc. 17-6 at 33.) Plaintiff’s son was a student at that school at this same time and
Monroe was aware of his disability. (Id.) However, Monroe was not aware that plaintiff had
filed any complaints against defendant because of her son. (Doc. 17-6 at 34.) Also, she was
not aware that plaintiff had filed EEOC charges against defendant. (Doc. 17-6 at 34-35.)
Monroe testified that Hord did not say anything to her about plaintiff’s son. (Doc. 176 at 34.) Also, she testified that Hord did not tell her not to select plaintiff and he did not
make any other negative comment about plaintiff. (Doc. 17-6 at 34, 37-39.) She testified
that Hord had not said anything to influence her decision. (Doc. 17-6 at 38; see also doc. 177 at 108.)
Plaintiff alleges that Hord “influenced” Monroe’s decision by participating in framing
and asking interview questions and scoring of the applicants’ interviews. (Doc. 22 at 6
[citing doc. 17-6 at 14-16, 25-26].) However, nothing in the record indicates that Hord
actually scored plaintiff significantly lower than Robinson such that an average of the scores
would give Robinson a higher average score than plaintiff. And, nothing in the record
indicates that Monroe did not score Robinson higher than plaintiff, such that Robinson was
her choice.

Monroe has never spoken to Costanzo about the CNP Manager position or

about plaintiff. (Doc. 17-6 at 35.) He did not instruct Monroe not to hire plaintiff or
otherwise say anything negative about plaintiff or about her son. (Doc. 17-6 at 38.)
Monroe recommended Robinson for the CNP Manager position at Faucett-Vestavia
Elementary School and the Board approved Robinson’s selection.

30

Plaintiff and others interviewed for an available CNP Manager position at Matthews
Elementary School on or about July 28, 2008. (Doc. 17-1 at 224; doc. 17-4 at 14; doc. 22-10
at 12; doc. 22-3 at 67.) These interviews were conducted by Principal David Scott and
Hord. (Doc. 17-1 at 16, 224; doc. 17-7 at 66.) Following the interviews, Scott and Hord
discussed the interviews. (Doc. 17-4 at 19.) The applicants received a final score based
solely on their interviews. (Id. at 45.) Scott testified that he had the final decision as to
whom he would recommend for the position. (Doc. 17-4 at 45-46.) However, Hord testified
that he and Scott averaged their interview scores to select the applicant. (Doc. 22-3 at 69.)
Scott recommended Chong Suk Hubbard, the applicant with the highest interview score, for
the job of CNP Manager at Matthews Elementary School. (Doc. 17-4 at 20-21 and ex. 15.)
At the time of the interviews, Hubbard was working at Matthews Elementary School
and, therefore, she was familiar with the school and its lunchroom. (Doc. 17-4 at 24-26.)
She had been training with the previous CNP Manager in preparation for becoming a CNP
Manager. (Doc. 17-4 at 33-34.) Indeed, Scott testified he had selected Hubbard based on
her familiarity with the school, the faculty, the students and the lunchroom. (Doc. 17-4 at 5051.) As to his discussion with Hord regarding the interviews, Scott testified:
. . . Once we completed the interviews, we talked about the overall
interview questions and the candidates, and he and I talked about what I was
looking for in terms of a CNP manager at the school. And in particular, we
just talked about what kind of fit I needed in terms of the student body, the
faculty, and staff, being familiar with the school, familiar with the students and
the responsibilities of a CNP manager.
...
31

Well, as the principal, I wanted the best person for the job, obviously,
but also someone who was familiar with not just the CNP part of it, the
manager position, but also the faculty and staff and also the student body, if at
all possible.
Sometimes you can’t get that in every situation, but those were our main
concerns; finding someone who was familiar with the school and the student
body and needs of the school.
(Id. at 19-20.) Hord testified that Hubbard had a good interview. (Doc. 22-3 at 69.)
Scott had not met plaintiff before her interview. (Doc. 17-4 at 46-47.) He did not
know that she had a son with special needs. (Doc. 17-4 at 47.) Moreover, he was not aware
that she had filed any sort of complaint, including EEOC charges, against defendant. (Doc.
17-4 at 47, 49.) He also testified that Hord did not say anything to dissuade him from
selecting plaintiff. (Id. at 50.) In fact, Scott testified that he did not remember Hord saying
anything about plaintiff. (Id. at 25.) Also, Scott never spoke to Costanzo about the CNP
Manager position at Maxwell Elementary or about plaintiff. (Id. at 48.)
Plaintiff contends that Hord influenced Scott’s recommendation based on his
participation in and scoring of the interviews. (Doc. 22 at 5-6 [citing doc. 17-4 at 16-19].)
However, Scott’s testimony refutes any inference that Hord influenced Scott’s selection of
Hubbard. (See does 17-4 at 16-19.)
Scott recommended Hubbard for the CNP Manager at Maxwell Elementary and the
Board approved Hubbard for the position.
Plaintiff and others were interviewed for a CNP Manager position at Englewood
Elementary School on or about July 30, 2008. (Doc. 17-1 at 223; doc. 17-3 at 14-15, 18; doc.
32

22-10 at 11.) The interviews were conducted by the Principal Joann Bassett and Hord. (Doc.
17-1 at 223; doc. 17-3 at 15; doc. 17-7 at 72; doc. 22-10 at 11.) Each applicant was asked
the same questions. (Doc. 17-3 at 14.) Bassett and Hord scored the applicants separately and
compared their scores after the interviews. (Doc. 17-3 at 14, 25.)
Bassett testified that she made the final decision as to which applicant she
recommended for the position. (Doc. 17-3 at 14-15, 26.) She testified that she could have
selected an applicant with a lower interview score. (Doc. 17-3 at 25.) However, she chose
the applicant with the highest score, Kathy Huff. (Id. at 27-28 and pl. ex. 13.) Huff had
served as a substitute CNP Manager for several months. (Doc. 17-3 at 29.) Bassett testified
that she recommended Huff because “her responses [in the interview] were very strong and
enthusiastic . . . in terms of the job itself.” (Id. at 41.) Hord testified that Huff had “a real
good interview.” (Doc. 22-3 at 72.) He also stated that Huff had a lot of experience before
she came to work for defendant. (Id. at 73.)
Bassett did not know plaintiff prior to the interview. (Doc. 17-3 at 36.) She was not
aware that plaintiff had complaints, including EEOC charges, against defendant. (Doc. 17-3
at 37-39.) She did not know that plaintiff’s son had special needs. (Doc. 17-3 at 37.)
Bassett testified that neither Costanzo nor Hord spoke badly about plaintiff or told her not
to select plaintiff. (Doc. 17-3 at 40; see also doc. 17-7 at 108.)
Plaintiff contends that Hord’s scoring steered Bassett away from recommending
plaintiff. (Doc. 22 at 5 [citing doc. 22-10; doc. 17-3 at 27-28].) However, Bassett testified

33

that she had selected Huff for the position because Huff had the highest interview score,
although she could not remember specifically how the final interview scores were obtained.
(Doc. 17-3 at 28.) She also testified that she recommended Huff because “her responses [in
the interview] were very strong and enthusiastic . . . in terms of the job itself.” (Id. at 41.)
Neither party has presented evidence of the actual interview scores of Bassett and Hord for
the Englewood Elementary position.
Bassett recommended Huff for the CNP Manager position at Englewood Elementary,
and the Board selected Huff for the position.
In February 2009, the EEOC issued a Determination as to plaintiff’s second EEOC
charge. (Doc. 1 at 16-17.) This letter stated –
Charging Party alleges that she has a child with a disability. During the week
of August 10, 2007, Charging Party submitted an application for the position
of child nutrition manager at Hill Crest High School. The position would have
been a promotion. On August 17, 2007, Charging Party received a letter form
the principal, which informed her that she was not selected for the position.
Charging Party also alleges that she filed a previous charge of discrimination
. . ., and that the filing of this charge resulted in Respondent’s retaliatory denial
of the promotion.
Respondent denies that it discriminated against the Charging Party.
I have determined that the evidence obtained during the investigation
establishes that there is reasonable cause to believe that a violation of the
statute has occurred. Specifically, the evidence indicates that Charging Party
was retaliated against because she filed a charge of discrimination. The
evidence also indicates that Respondent’s decision not to transfer or promote
Charging Party to a position closer to home, was influenced by Respondent’s
knowledge that she was a caregiver for her disabled child.
(Doc. 1 at 16-17.)
34

In 2009, plaintiff and others applied for the job of CNP Manager at Maxwell
Elementary School. (Doc. 17-1 at 236; doc. 17-8 at 68.) Principal Connie Clements
recommended that plaintiff be hired for the position. (Doc. 17-1 at 241, 247; doc. 17-8 at
69.) Costanzo forwarded Clements’s selection to the Board, and the Board approved
plaintiff’s selection for the CNP Manager at Maxwell Elementary School. (Doc. 17-1 at
241-42; doc. 17-8 at 69.)
For all of the positions, Costanzo forwarded the principals’ selections to the Board and
the Board approved each selection. (Doc. 17-8 at 44.) Costanzo testified that he was aware
plaintiff had complained about not being selected for the positions at issue; however, he
“never was told that her complaint was because her child was a special education student.”
(Doc. 17-8 at 42.)
Following unsuccessful attempts at conciliation, on May 11, 2010, the EEOC issued
plaintiff a right-to-sue letter. (Doc. 17-1 at 236; doc. 1 at 18-19.) On August 9, 2010,
plaintiff filed this action.

(Doc. 1.)

She alleges claims based on each denial of

promotion/transfer for the CNP Manager positions set forth above. She claims defendant did
not select her for these positions because of her association with her disabled son and/or in
retaliation for engaging in protected activity on behalf of her son or for filing of EEOC
charges.

35

C. DISCUSSION
Plaintiff alleges that defendant refused to promote and/or transfer her to an available
CNP Manager position closer to her home because of her association with her disabled son
and/or in retaliation for advocating for her son or complaining about discrimination.
1. Disability Discrimination
Plaintiff contends that defendant denied her promotions to a school closer to her home
because of her association with her son who has a disability. “The ADA . . . defines the term
‘discriminate’ to include, among other factors, ‘excluding or otherwise denying equal jobs
or benefits to a qualified individual because of the known disability of an individual with
whom the qualified individual is known to have a relationship or association.’” Hilburn v.
Murata Electronics North America, Inc., 181 F.3d 1220, 1230 (11th Cir. 1999)(quoting 42
U.S.C. § 12112(b)(4)).13 “The familiar burden-shifting analysis of [McDonnell Douglas]

13

The ADA provides:

(a) General rule
No covered entity shall discriminate against a qualified individual on the basis
of disability in regard to job application procedures, the hiring, advancement,
or discharge of employees, employee compensation, job training, and other
terms, conditions, and privileges of employment.
(b) Construction
As used in subsection (a) of this section, the term “discriminate against a
qualified individual on the basis of disability” includes –
...
36

is equally applicable to ADA claims.” Id. at 1226 (citing Moses v. American Nonwovens,
Inc., 97 F.3d 446, 447 (11th Cir. 1996)).
McDonnell Douglas and subsequent decisions have established an
allocation of the burden of production and an order for the presentation of
proof in . . . discriminatory-treatment cases. First, the plaintiff must establish
a prima facie case of discrimination. . . . The burden [then] shift[s] to [the
defendant] to produce evidence that the plaintiff was rejected, or someone else
was preferred, for a legitimate, nondiscriminatory reason. This burden is one
of production, not persuasion; it can involve no credibility assessment. [When
the defendant offers] admissible evidence sufficient for the trier of fact to
conclude that [the plaintiff] was fired [for a legitimate, nondiscriminatory
reason], the McDonnell Douglas framework – with its presumptions and
burdens – disappear[s], and the sole remaining issue [is] discrimination vel non
....
Although intermediate evidentiary burdens shift back and forth under
this framework, the ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff remains at all times
with the plaintiff. And in attempting to satisfy this burden, the plaintiff – once
the employer produces sufficient evidence to support a nondiscriminatory
explanation for its decision – must be afforded the opportunity to prove by a
preponderance of the evidence that the legitimate reasons offered by the
defendant were not its true reasons, but were a pretext for discrimination. That
is, the plaintiff may attempt to establish that he was the victim of intentional
discrimination by showing that the employer’s proffered explanation is
unworthy of credence.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142-43(2000)(internal citations
and quotations omitted).

(4) excluding or otherwise denying equal jobs or benefits to a qualified
individual because of the known disability of an individual with whom
the qualified individual is known to have a relationship or association
....
42 U.S.C. § 12112(a)-(b).
37

In this circuit –
A plaintiff attempting to establish a prima facie case of “association
discrimination” under the ADA must establish: (1) that she was subjected to
an adverse employment action; (2) that she was qualified for the job at that
time; (3) that her employer knew at that time that she had a relative with a
disability; and (4) that “the adverse employment action occurred under
circumstances which raised a reasonable inference that the disability of the
relative was a determining factor in [the employer’s] decision.”
Wascura v. City of South Miami, 257 F.3d 1238, 1242 (11th Cir. 2001)(quoting Hilburn, 181
F.3d at 1230-31). To satisfy the fourth prong of the prima facie case, plaintiff must show that
her son’s disability was a determining factor in defendant’s decisions not to promote her. To
the extent plaintiff contends she was punished for her efforts of advocating on behalf of her
son, “such a claim implicates the prohibition against retaliation contained in . . . the ADA,
[and] not the association provision.” See Oliveras-Sifre v. Puerto Rico Department of
Health, 214 F.3d 23, 26 (1st Cir. 2000).
The Seventh Circuit has divided association claims into “three types of situations” that
support an inference that the employee’s association with a person with a disability was a
determining factor in the employer’s adverse employment decision: “[1] ‘expense,’ [2]
‘disability by association,’ and [3] ‘distraction.’”

Larimer v. International Business

Machines Corp., 370 F.3d 698, 700-01 (7th Cir. 2004); quoted in Trujillo v. PacifiCorp, 524
F.3d 1149, 1155 (10th Cir. 2008).
[The three situations] can be illustrated as follows: an employee is fired (or
suffers some other adverse personnel action) because (1) (“expense”) his
spouse has a disability that is costly to the employer because the spouse is
covered by the company’s health plan; (2a) (“disability by association”) the
38

employee’s homosexual companion is infected with HIV and the employer
fears that the employee may also have become infected, through sexual contact
with the companion; (2b) (another example of disability by association) one
of the employee’s blood relatives has a disabling ailment that has a genetic
component and the employee is likely to develop the disability as well (maybe
the relative is an identical twin); (3) (“distraction”) the employee is somewhat
inattentive at work because his spouse or child has a disability that requires his
attention, yet not so inattentive that to perform to his employer’s satisfaction
he would need an accommodation, perhaps by being allowed to work shorter
hours. The qualification concerning the need for an accommodation (that is,
special consideration) is critical because the right to an accommodation, being
limited to disabled employees, does not extend to a nondisabled associate of
a disabled person. 29 C.F.R. § 1630.8; Den Hartog v. Wasatch Academy,
supra, 129 F.3d [1076,] 1083-85 [(10th Cir. 1997)]; Tyndall v. National
Education Centers, Inc., supra, 31 F.3d [209,] 214 [(4th Cir. 1994)].
Id. Plaintiff has not attempted to argue any reason for the alleged animus directed at her
because of her son’s disability.
Plaintiff has not presented any evidence supporting an inference that any decisionmaker viewed her association with her disabled son, as opposed to her advocacy on his
behalf, as negatively effecting her job performance. Indeed, Hord and Costanzo were aware
that plaintiff had a disabled son when she was hired and when she was promoted to CNP
Manager at Buhl Elementary. See Stansberry v. Air Wisconsin Airlines Corp., 651 F.3d 482,
488 (6th Cir. 2011)(employer’s knowledge of plaintiff’s wife’s illness for “a long period of
time . . . undercuts the inference that [plaintiff’s] termination was based on unfounded fears
that his wife’s disability might cause him to be inattentive at work ”); Erdman v. Nationwide
Insurance Co., 582 F.3d 500, 511 (3d Cir. 2009)(plaintiff did not present evidence sufficient
to support her claim of association discrimination, in part, because her employer had been

39

aware of her child’s disability for “many years”). Plaintiff has failed to present substantial
evidence from which a reasonable jury could infer that her son’s disability was a determining
factor in her non-selection for the positions at issue. In her Brief in Opposition to
Defendant’s Motion for Summary Judgment, plaintiff argues:
. . . Defendant argues that [plaintiff] cannot satisfy the fourth element
of the Hilburn test, which requires that the [defendant’s] failure to promote
[plaintiff] occurred under circumstances that would raise a reasonable
inference that her association with her disabled son was a determining factor
in the Defendant’s decision. On the contrary, [plaintiff] has more than enough
evidence to raise a reasonable inference. First, some of the same people that
said negative things about [plaintiff], and sometimes in a threatening manner
– Director Hord and Dr. Costanzo – were the people involved in hiring the
CNP managers. Director Hord scored [plaintiff] far lower than Principal
Hyche did. In some instances, [plaintiff] was only a few points away from
being the highest scoring candidate, which was the one who always was
recommended for the position – notwithstanding their lack of managerial
experience compared to [plaintiff]. Moreover, when [plaintiff] applied for the
CNP manager position at Maxwell Elementary, Principal Rickett informed
[plaintiff] that she would be considered for the position now that her son no
longer attended the school. If [plaintiff’s] son was not disabled, then she
would have had a greater likelihood [of] obtaining a promotion. This evidence
provides at least a reasonable inference that [plaintiff’s] association with her
disabled son was a determining factor in the Defendant’s decision to
repeatedly fail to promote [plaintiff], to say nothing of Hord’s statement that
what she did held her back, and Costanzo’s admission to Tunnell that she cost
the system a lot of money with her advocacy.
(Doc. 22 at 25-26.) The court has considered the evidence plaintiff contends supports her
prima facie case of association discrimination and, for the reasons set forth below, the court
finds plaintiff’s evidence is insufficient to support a reasonable inference that defendant did
not select her for the CNP Manager positions at issue because of her son’s disability.

40

a. Costanzo’s Statements Regarding Plaintiff are Irrelevant
Plaintiff alleges that Costanzo told plaintiff’s representative, after a hearing on her
grievance, “Do you know how much money [Plaintiff] had cost the system?’ This statement
was not made with regard to plaintiff’s son or his disability. Moreover, the undisputed
evidence proves that Costanzo did not have any part in the selection decisions and that he
recommended the principals’ selections to the Board each and every time – including
plaintiff’s selection for the Maxwell Elementary position in 2009. Although plaintiff argues
that Costanzo “could have” influenced the principals during the selection process, she has
not presented any evidence sufficient to support an inference that he actually “did” influence
the principals or otherwise caused plaintiff’s non-selection for any of the positions at issue.
Her argument that Costanzo influenced the selection decisions at issue is “pure speculation.”
See Clover v. Total System Services, Inc., 176 F.3d 1346, 1355 (11th Cir. 1999)(“The
evidence that Miller and Hollingsworth spoke in the time period between Clover’s
participation in the investigation and Miller’s decision to terminate her shows, at most, that
Hollingsworth could conceivably have told Miller about Clover’s participation. But because
‘could have told’ is not the same as ‘did tell,’ it would be pure speculation to infer that
Hollingsworth actually told Miller about Clover’s participation. . . . A jury finding that
Miller was aware of Clover’s protected conduct must be supported by reasonable inferences
from the evidence, not mere speculation.”).

41

Hord and every principal involved in the six selection decisions at issue testified that
Costanzo did nothing to influence their recommendation of the CNP Manager. Plaintiff has
offered no evidence to impeach their unequivocal denials. Therefore, the court finds
Costanzo’s statements are irrelevant. See id. at 1355-56.
b. Hord’s Statements
Plaintiff argues that Hord made statements to and about plaintiff that show he was
motivated by a discriminatory animus based on plaintiff’s association with her son.
However, none of these statements are unambiguously about plaintiff’s son and his disability
or otherwise indicate discriminatory animus toward people with disabilities or people
associated with disabilities. Given the clear and unrebutted testimony of the principals that
Hord did not influence their decisions, his less than supportive statements to and about
plaintiff do not support a reasonable inference that she was not selected for the positions at
issue because Hord was motivated by unlawful discrimination.
c. Hord’s Scores
Plaintiff contends that evidence of Hord’s score of plaintiff’s interview for the
Hillcrest High School position, which was much lower than Hyche’s score, supports an
inference that plaintiff was not selected for any of the positions at issue because of her
association with her son.
First, the record contains only Hyche and Hord’s scores from the Hillcrest High
School interviews and only the scores for Hupp and plaintiff. Nothing in the record indicates

42

the score assigned by the other principals and Hord at the other schools. Without such
evidence, plaintiff’s assertion that she did not have the highest interview score at the other
school because of Hord is only unwarranted conjecture.
Second, the evidence of the scores of Hyche and Hord for the Hillcrest High School
position do not show that plaintiff would have been the highest scoring applicant but for
Hord’s low score. Hyche gave Hupp a score of 53 and plaintiff a score of 51. (See doc. 2219 at 2, 4.) Hord gave plaintiff a score of 29 and Hupp a score of 54. (Id. at 3,5.) Plaintiff
has not attempted to dispute Hord’s scores, except to state that she had more experience than
Hupp. Hyche gave Hupp, the successful applicant, a higher score than he gave plaintiff.
Also, Hyche testified that he considered the scores of the assistant principals in determining
the final interview score. Without the score sheets of the assistant principals and given the
fact that Hyche scored Hupp higher than plaintiff, the evidence is insufficient to demonstrate
that Hord’s low score for plaintiff caused her non-selection for the Hillcrest High School
CNP Manager position. Therefore, this evidence does not support any inference that plaintiff
was not selected for the Hillcrest High School position because of her association with her
disabled son.
d. Rickett’s Comment
Plaintiff contends that Rickett’s comment, that plaintiff could be considered for a
position at Maxwell Elementary because her son was no longer a student at the school, (see
doc. 17-1 at 129-31), supports an inference that “she would have had a greater likelihood of

43

obtaining a promotion” if she did not have a disabled son. (Doc. 22 at 25.) The court
disagrees. The statement does not mention her son’s disability. Also, although plaintiff’s
son was not a student at Maxwell Elementary when Rickett made the statement, he was, and
is, a student with a disability in the defendant’s school system. Drawing an inference that
defendant harbored animus toward plaintiff because of her son’s disability based on a
statement that plaintiff would be considered for a position at a school where her son was not
a student is simply not reasonable.

Based on the foregoing, the court finds that plaintiff has not established sufficient
evidence to allow a reasonable jury to find that she was denied the promotions at issue
because of her association with her disabled son. Therefore, defendant’s Motion for
Summary Judgment will be granted and plaintiff’s association claims will be dismissed.

2. Retaliation
Pursuant to the ADA, “No person shall discriminate against any individual because
such individual has opposed any act or practice made unlawful by this chapter or because
such individual made a charge . . . or participated in any manner in an investigation,
proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a). “This provision creates
a prohibition on retaliation under the ADA that is similar to Title VII’s prohibition on
retaliation. Accordingly, [the court] assess[es] ADA retaliation claims under the same

44

framework [it] employ[s] for retaliation claims arising under Title VII.” Stewart v. Happy
Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir. 1997)(citation omitted).
a. Prima Facie Case
“In order to prove an ADA retaliation claim, a plaintiff must show that: (1) [she]
engaged in conduct protected by the ADA; (2) [she] was subjected to an adverse employment
action at the time, or after the protected conduct took place; and (3) the defendant took an
adverse employment action against [her] because of [her] protected conduct.” Collado v.
United Parcel Service, 419 F.3d 1143, 1158 (11th Cir. 2005)(internal quotations and citation
omitted).
i. Protected Activity
Defendant “acknowledges that Ms. Rhodes advocated for her son and that she filed
two EEOC charges and three employment grievances.” (Doc. 16 at 26.) Between 2003 and
August 2008, plaintiff did not file due process claims and state complaints regarding her son.
However, she also contends that she advocated for her son in-house during this time period
with his teachers and principals at Hillcrest Middle School. Also, plaintiff filed grievances
in 2001, 2007, and 2008. The 2001 grievance, which complained of Smith contacting Hord,
is too far removed from the decisions at issue to establish a causal connection between this
grievance and the selection decisions in 2007 and 2008. See Clark County School Dist. v.
Breeden 532 U.S. 268, 273-274 (2001)(“The cases that accept mere temporal proximity
between an employer’s knowledge of protected activity and an adverse employment action

45

as sufficient evidence of causality to establish a prima facie case uniformly hold that the
temporal proximity must be very close. Action taken . . . 20 months later suggests, by itself,
no causality at all.”)(internal citations and quotations omitted). Also, nothing in the record
indicates that the 2007 and 2008 grievances contained any complaint about disability
discrimination or retaliation. Therefore, the court does not consider the 2007 and 2008
grievances to be protected activity. See Brown v. City of Opelika, 211 Fed. Appx. 862, 864
(11th Cir. 2006)(finding plaintiff did not engage in protected activity because she did not use
the word “race” or recount “racially derogatory comments”); see also Sitar v. Indiana Dept.
of Transp., 344 F.3d 720, 727 (7th Cir. 2003)(“Although an employee need not use the magic
words . . . to bring her speech within Title VII’s retaliation protections, “she has to at least
say something to indicate her [protected characteristic or retaliation] is an issue. An
employee can honestly believe she is the object of discrimination [or retaliation], but if she
never mentions it, a claim of retaliation is not implicated, for an employer cannot retaliate
when it is unaware of any complaints.”)
Plaintiff filed two EEOC charges – the first on April 6, 2007, and the second on
September 5, 2007. The court finds plaintiff’s advocacy on behalf of her son and her EEOC
charges are protected activity.
ii. Adverse Action
The denial of the promotions/transfers at issue constitute conduct that “well might
have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

46

See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). Thus, the
court finds the selection decisions challenged by plaintiff are adverse employment actions.
iii. Causal Connection
“The causal link element [of the retaliation prima facie case] is construed broadly so
that a plaintiff merely has to prove that the protected activity and the negative employment
action are not completely unrelated.” Pennington v. City of Huntsville, 261 F.3d 1262, 1266
(11th Cir. 2001)(quoting Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th
Cir.1998)(quoting E.E.O.C. v. Reichhold Chem., Inc., 988 F.2d 1564, 1571-72 (11th
Cir.1993)))(internal quotations omitted). “A plaintiff satisfies this element by showing that
the decision-maker knew of the protected activity, and that a close temporal proximity
existed between this awareness and the adverse employment action.” Castillo v. Roche
Laboratories, 2012 WL 1648873 at *2 (11th Cir. 2012)(citing Higdon v. Jackson, 393 F.3d
1211, 1220 (11th Cir. 2004)).
Plaintiff argues that Costanzo and the Board, the defendant, were aware of her
protected activity; therefore, she does not have to prove that the principals and Hord, the
decision-makers, were aware of her protected activity. Plaintiff is mistaken. Binding
Eleventh Circuit precedent requires that the employer’s agent or employee responsible for
taking the adverse action or making the adverse decision – the decision-maker – was aware
of the protected activity. Raney v. Vinson Guard Service, Inc., 120 F.3d 1192, 1197 (11th
Cir. 1997)(“Since corporate defendants act only through authorized agents, in a case

47

involving a corporate defendant the plaintiff must show that the corporate agent who took
the adverse action was aware of the plaintiff's protected expression and acted within the
scope of his or her agency when taking the action.”)(citation omitted). Costanzo and the
Board members were not involved in the selection decision at issues; therefore, their
knowledge of plaintiff’s protected activity is irrelevant.
Hord testified that he was not aware of plaintiff’s advocacy on behalf of her son after
plaintiff became the CNP Manager at Buhl. Of the principals, only Dockery was aware of
plaintiff’s advocacy for her son; she had participated in IEP meetings. But she testified that
the meetings were without friction and that she was unaware plaintiff had “filed certain legal
documents against the School Board.” (Doc. 17-2 at 51-52.) The court finds, except for
Duncanville Middle School, plaintiff has not shown that the decision-makers were aware of
plaintiff’s protected activity on behalf of her son.
The undisputed evidence shows that none of the decision-makers involved in the
selection decisions at issue – Hord and the principals – knew that plaintiff had filed EEOC
charges at the time they made their decisions. Although Costanzo knew about the EEOC
charges, nothing in the record indicates that he told Hord and/or any of the principals that
plaintiff had filed EEOC charges. The Eleventh Circuit has “made clear . . . that in the
context of Title VII retaliation claims neither a court nor a jury may impute knowledge to a
decision-maker who has sworn he had no actual knowledge.” Summers v. City of Dothan,
444 Fed. Appx. 346, 352 (11th Cir. 2011)(quoting Brochu v. City of Riviera Beach, 304 F.3d

48

1144, 1156 (11th Cir. 2002))(internal quotations omitted). The court finds this principle
applies equally to ADA retaliation claims.
The court finds no causal connection between plaintiff’s non-selection for the
positions at issue and her filing of EEOC charges.
Based on the foregoing, the court finds that plaintiff has failed to establish a prima
facie case of retaliation with regard to the selection decision at issue, except for the
Duncanville Middle School position. Therefore, defendant’s Motion for Summary Judgment
is due to be granted and plaintiff’s retaliation claims, except the Duncanville Middle School
decision, will be dismissed.
b. Pretext
“After the plaintiff has established the elements of a claim, the employer has an
opportunity to articulate a legitimate, nonretaliatory reason for the challenged employment
action as an affirmative defense to liability.” Goldsmith v. Bagby Elevator Co., Inc., 513
F.3d 1261, 1277 (11th Cir. 2008)(citing Coutu v. Martin County Bd. of County Comm’rs, 47
F.3d 1068, 1073, 1075 n.54 (11th Cir. 1995)). “[I]f the employer articulates one or more
reasons, then the presumption of discrimination is rebutted, and the burden of production
shifts to the plaintiff to offer evidence that the alleged reason of the employer is a pretext for
illegal discrimination.” Brown v. Alabama Dept. of Transp., 597 F.3d 1160, 1174 (11th Cir.
2010)(quoting Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004))(internal
quotations omitted).

49

Even if the court assumed a prima facie case of retaliation,14 the court finds plaintiff
has not offered sufficient evidence from which a reasonable jury could find that defendant’s
articulated reasons for its selection decisions is unworthy of credence and retaliation for
plaintiff’s advocacy for her disabled son and/or for filing EEOC charges was the true reason
she was not selected for the positions at issue.
To show pretext, [plaintiff] had to demonstrate “such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in
[defendant’s] proffered legitimate reasons for its action that a reasonable fact
finder could find them unworthy of credence.” Combs v. Plantation Patterns,
106 F.3d 1519, 1538 (11th Cir. 1997). He could not “recast [defendant’s]
proffered nondiscriminatory reasons or substitute his business judgment for
that of [defendant]. Provided that the proffered reason [was] one that might
motivate a reasonable employer, [plaintiff] [had to] meet that reason head on
and rebut it . . . .” Chapman [v. AI Transport], 229 F.3d [1012,] 1030 [(11th
Cir. 2000)]. Thus, to avoid summary judgment, [plaintiff] had to produce
sufficient evidence to rebut each of [defendant’s] proffered legitimate,
nondiscriminatory reasons. See id. at 1037.
Furthermore, federal courts do not sit “as a super-personnel department
that reexamines an entity’s business decisions . . . .” Elrod v. Sears, Roebuck
& Co., 939 F.2d 1466, 1470 (11th Cir. 1991). Disparities in qualifications
“must be of such weight and significance that no reasonable person, in the
exercise of impartial judgment, could have chosen the candidate over the
plaintiff for the job in question.” Cooper v. Southern Co., 390 F.3d 695, 732
(11th Cir. 2004), overruled in part on other grounds, Ash v. Tyson Foods, 546
U.S. 454, 126 S. Ct. 1195, 163 L. Ed. 2d 1053 (2006).
The district court did not err in concluding [plaintiff] failed to establish
[defendant’s] reason for promoting the other candidate was pretext for race or
age discrimination. Although [defendant’s] reason for promoting the other
candidate – his superior interview performance – was subjective, “subjective

14

As noted above, the court assumes a prima facie case as to the position at
Duncanville Middle School.
50

reasons are not the red-headed stepchildren of proffered nondiscriminatory
explanations for employment decisions.” Chapman, 229 F.3d at 1034.
Furthermore, [plaintiff] failed to identify a disparity in qualifications such that
no reasonable person, in the exercise of impartial judgment, would have
promoted the other candidate over him. See Cooper, 390 F.3d at 732.
Although [plaintiff] had more seniority and experience, he failed to rebut or
even address the other candidate’s identified strengths in the other dimensions
on which [defendant] relied. Accordingly, the district court did not err in
granting summary judgment for [defendant’s] on [plaintiff’s] 's race and age
discrimination claims.
Porter v. American Cast Iron Pipe Co., 427 Fed. Appx. 734, 736-37 (11th Cir. 2011).
Defendant contends that the principals selected the individuals they felt were the most
qualified and the best fit for their schools. Plaintiff contends:
The Defendant claims that it hired the other candidates because they
were the most qualified. This reason is pretext because the candidates hired
were not the most qualified. Every candidate hired over Rhodes was a CNP
worker, with little or no experience as a CNP manager. Rhodes, on the other
hand, had several years of experience as a CNP manager. Moreover, Principal
Dockery and Principal Monroe’s reasons for choosing Boatner and Robinson,
respectively, over Rhodes are particularly troubling. Principal Dockery claims
that they recommended Boatner because she was qualified, energetic, and lived
near the school. Principal Dockery also admitted that Rhodes was qualified
and energetic, and one of the main reasons that Rhodes wanted to be
transferred to one of the schools she applied to is so that she could be closer
to home. Furthermore, Principal Monroe claimed that they recommended
Robinson because she was highly recommended by her previous principal and
CNP manager. Rhodes was also highly recommended by her principal, coworkers, and even Director Hord.
(Doc. 22 at 30 [emphasis in original].) Plaintiff also contends that Hord’s scores kept her
from being the candidate with the highest interview scores.
Plaintiff contends that she was the most qualified candidate because she had the most
experience as a CNP Manager. “[When] a plaintiff attempts to show pretext by arguing that
51

[she] was more qualified than another individual, [she] must show, in light of those superior
qualifications, that ‘no reasonable person’ would have selected the other candidate rather
than the plaintiff.” Lucas v. United States Attorney General, 467 Fed. Appx. 854, 858 (11th
Cir. 2012)(citing Springer v. Convergys Customer Mgmt. Grp. Inc., 509 F.3d 1344, 1349
(11th Cir. 2007)). Experience is not necessarily the most important factor in determining the
best qualified candidate for the CNP positions at issue. Springer, 509 F.3d at 1349
(“Personal qualities ... factor heavily into employment decisions concerning supervisory or
professional positions. Traits such as common sense, good judgment, originality, ambition,
loyalty, and tact often must be assessed primarily in a subjective fashion, yet they are
essential to an individual’s success in a supervisory or professional position.”)(quoting
Denney v. City of Albany, 247 F.3d 1172, 1186 (11th Cir.2001)).
All the decision-makers agree that the application with the highest interview score was
selected. Plaintiff has not referred to any evidence that her experience correlated to her
ability to interview well or that her performance during the interview was better than the
allegedly less-experienced applicant selected. Also, she has not presented any evidence to
indicate that the successful applicants did not interview as well or less well than she did. In
other words, plaintiff’s experience as a CNP Director does not support an inference that
defendant’s articulated reasons for selecting another candidate with a higher interview score,
is a pretext and retaliation was the real reason plaintiff was not selected.

52

The principals and Hord testified that the principals selected the candidates for the
CNP Manager positions based on their interview scores – the candidates with the highest
interview scores were selected. Plaintiff contends that Hord scored her so low that she was
prevented from being the highest scoring applicant. Although plaintiff has submitted the
scores of Hyche and Hord for her interview and that of Hupp, the scores do not support her
position that Hord’s low score prevented her from being the highest scoring applicant. The
evidence shows that Hyche gave plaintiff a lower score than the score he gave Hupp. Hord’s
low score may have made the difference between Hupp and plaintiff wider, but it was not the
sole reason that plaintiff was not the highest scoring applicant for the Hillcrest High School
position.
Also, the court has no score sheets from the interviews at the other schools. The court
will not presume that Hord’s scores for plaintiff’s interviews prevented her from being the
highest scoring applicant based solely on the Hillcrest High School scores from Hyche and
Hord for plaintiff and Hupp.
Principals Hyche, Hobbs, and Scott testified that they selected applicants that had
worked at their respective schools. Plaintiff has not presented evidence to rebut their
testimony that their familiarity with the candidates influenced their decisions. The court
finds plaintiff has not attempted to rebut this articulated reason with regard to the selection
decisions for Hillcrest High School, Hillcrest Middle School, and Mathews Elementary
School.

53

Plaintiff challenges Dockery’s articulated reasons for selecting Boatner for the
position at Duncanville Middle School. Particularly, plaintiff contends Dockery selected
Boatner “because she was qualified, energetic, and lived near the school,” and that Dockery
had also testified that plaintiff was “qualified and energetic” and plaintiff wanted to work
closer to home. (Doc. 22 at 30.) Dockery testified that she did not know where plaintiff
lived. (Doc. 17-2 at 74.) Also, she testified that promoting Boatner would not “cause a
domino effect in any school,” as would selecting a CNP Manager, like plaintiff, for the CNP
Manager position at Duncanville Middle School. (Id. at 71.) She testified that other
selections she made that summer “were pretty much all filled from people that were not
coming from another school . . . . So that was just bringing the newness of the school
together and bringing in new people and opportunities.” (Id. at 71-72.) Plaintiff’s evidence
– that she had good energy and wanted to transfer to be closer to home – does not address
Dockery’s stated preference for new people and rebut head-on the reasons Dockery gave for
selecting Boatner.
Plaintiff also challenges Monroe’s articulated reason for selecting Robinson for the
position at Faucett-Vestavia Elementary School. Monroe testified that she “ultimately
decide[d] that Pam Robinson was a better candidate for the manager position than
[plaintiff],” because Robinson “came highly recommended.” (Doc. 17-6 at 37.) She testified
that Robinson’s Principal and CNP Manager recommended her. Plaintiff contends that she
“was also highly recommended by her principal, co-workers, and even Director Hord.” (Doc.

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22 at 30.) However, Monroe did not call plaintiff’s references, (doc. 17-6 at 37), and the
record does not support an inference that plaintiff included her recommendations with her
application. Plaintiff’s contention – her references would have recommended her if Monroe
had asked them – does not support an inference that Monroe’s articulated reason for hiring
Robinson – her Principal and CNP Manager contacted Monroe and “highly recommended”
Robinson – is a pretext for retaliation.

Based on the foregoing, the court finds that plaintiff has not established that
defendant’s articulated reasons for not selecting plaintiff for the CNP positions at issue are
unworthy of credence and/or that the real reason plaintiff was not selected was retaliation for
advocating for her son or filing EEOC charges. Therefore, defendant’s Motion for Summary
Judgment as to plaintiff’s retaliation claims will be granted and her claim will be dismissed.

CONCLUSION
For the foregoing reasons, the court is of the opinion that there are no material facts
in dispute and defendant is entitled to judgment as a matter of law. An Order granting
defendant’s Motion for Summary Judgment, (doc. 17), and granting in part and denying in
part plaintiff’s Motion to Strike, (doc. 25), will be entered contemporaneously with this
Memorandum Opinion.

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DONE, this 24th day of March, 2013.

SHARON LOVELACE BLACKBURN
CHIEF UNITED STATES DISTRICT JUDGE

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