Danner v. Sumter County Board of Education et al

Filing 62

MEMORANDUM OPINION- Signed by Judge R David Proctor on 8/6/2014. (AVC)

FILED
2014 Aug-06 AM 10:46
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
WILLIE MAE DANNER,
Plaintiff,
v.
SUMTER COUNTY BOARD OF
EDUCATION,
Defendant.

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Case No.: 7:12-CV-02391-RDP

MEMORANDUM OPINION
This case is before the court on Defendant’s Motion for Summary Judgment (Doc. #55),
filed on February 6, 2014. The Motion (Doc. #55) has been fully briefed. (Docs. #57, #58, #59).
For the reasons outlined below, the Motion (Doc. #55) is due to be denied.
I.

Procedural History
Plaintiff Willie Mae Danner (“Plaintiff” or “Danner”) initiated this lawsuit on July 5,

2012 by filing an Application Under Section 706(f) of the Civil Rights Act of 1964 (Doc. #1)
against Defendants Sumter County Board of Education (“Board”), Katie Jones Powell
(“Powell”), and Fred Primm, II (“Primm”) (collectively, “Defendants”). Plaintiff then filed an
Amended Complaint (Doc. #3) and a Second Amended Complaint (Doc. #5), after which the
Defendants filed Motions to Dismiss (Doc. #9 & #30). By Orders dated February 26, 2013 (Doc.
#35) and February 28, 2013 (Doc. #37), the court dismissed all of Plaintiff’s claims against
Defendants Powell and Primm with prejudice.
On February 6, 2014, Defendant Board filed a Motion for Summary Judgment (Doc.
#55), along with Evidentiary Materials (Doc. #56) and a Supporting Brief (Doc. #57). Plaintiff

filed her Response (Doc. #58) on February 27, 2014, and Defendant filed its Reply (Doc. #59) on
March 13, 2014, rendering Defendant’s Motion (Doc. #55) properly under submission.
II.

Facts1
Plaintiff is an African-American female, whose entire professional career has been spent

working as an educator in Sumter County, Alabama. (Doc. #5 at 14, 27). Plaintiff graduated
from the University of West Alabama (“UWA”) in 1978 with a bachelor’s degree in elementary
education, and began working as a special education teacher at Livingston Junior High School
that same year. (Doc. #56, Ex. A, Pl. Dep. at 16, 23). Plaintiff remained as a special education
teacher until 2001, and during that time she obtained a master’s degree in special education
(1985) and completed the necessary coursework for certification in educational administration
(1999), all at UWA. (Doc. #56, Ex. A, Pl. Dep. at 16, 20, 25). In the fall of 2001, Livingston
Junior High School switched to a dual-principal, administrative model, under which Plaintiff
served as principal of the elementary division (kindergarten through fourth grade) and Ms.
Bobbie Pope-Dubose (“Pope-Dubose”) operated as principal of grades five through eight. (Doc.
#56, Ex. A, Pl. Dep. at 25, 27).
During the 2009-2010 school year, the Sumter County Board of Education experienced
significant financial difficulty, requiring the intervention of the State Department of Education
and preventing the Board from continuing to use “local funds” to staff certain positions within
the system. (Doc. #56, Ex. L at ¶ 5-6). One of these positions was Plaintiff’s, which had to be
supplemented by local monies because only one principal position was allocated to Livingston
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The facts set out in this opinion are gleaned from the parties’ submissions of facts claimed to be
undisputed, their respective responses to those submissions, and the court’s own examination of the evidentiary
record. All reasonable doubts about the facts have been resolved in favor of the nonmoving party. See Info. Sys. &
Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002). These are the “facts” for summary
judgment purposes only. They may not be the actual facts that could be established through live testimony at trial.
See Cox v. Adm’r U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th Cir. 1994).

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Junior High School by the State Department of Education. (Doc. #56, Ex. L at ¶ 7). In light of
the system’s strained finances and a decrease in enrollment at Livingston Jr. High School, the
Board decided that the school should proceed with only one principal, rather than two. (Id.).
On June 24, 2010, the Board posted a job opening notice for Livingston Junior High
School’s new, sole principalship. (Doc. #56, Ex. L-1). Sometime thereafter, Plaintiff completed
an online application for the position and scheduled an interview appointment. (Doc. #56, Ex. A,
Pl. Dep. at 148-49). On July 12, 2010, a committee of parents, teachers, and administrators
interviewed prospective candidates for the position of principal. (Doc. #56, Ex. A, Pl. Dep. at
144). Among those on the interview committee were Ms. Pope-Dubose (by that time a testing
coordinator with the school system), Ms. Hermania Little Blakely, Ms. Robin Harrison (a thirdgrade teacher), Ms. Monique Deavers (a seventh/eighth-grade science teacher), Ms. Jackie Harris
(a parent), and Mr. Primm (superintendent). (Doc. #56, Ex. A, Pl. Dep. at 145-46). Seven
applicants (including Plaintiff) were interviewed that day, and each candidate received an
individual score from the various committee members. (Doc. #56, Ex. L at ¶ 11). Pope-Dubose
has stated in an affidavit that she remembers Superintendent Primm instructing the committee
members to give Plaintiff low scores and stating that “he was going to recommend Miss Jemison
for the job because she was younger and [Plaintiff] was older and . . . could retire.” (Doc. #58,
Ex. B). To the contrary, the other committee members have no recollection of such statements,
recalling instead that Mr. Primm did not express interest or disinterest in any particular applicant
based upon age. (Doc. #56, Exs. G, H, I, J).
After all of the candidates were interviewed, the committee members’ scores were tallied
and combined, resulting in a composite score for each candidate. (Doc. #56, Ex. L at ¶ 11).
Plaintiff scored an 82, good for third place among the candidates, with only Cynthia Jemison

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(84.5) and Dyana Thomas (83.5) scoring higher. (Id.; Doc. #56, Ex. L-2). Taking into account
the scores generated by the interview committee (along with the candidates’ respective
qualifications), Superintendent Primm determined that Ms. Jemison was the best candidate for
the principal position. (Doc. #56, Ex. L at ¶ 12).
On the morning of July 27, 2010, Superintendent Primm informed Plaintiff by handdelivered letter that he intended to recommend the cancellation of her contract to the Board.
(Doc. #58, Ex. G). That night, Superintendent Primm did, in fact, recommend to the Board that
(a) Plaintiff’s contract be terminated, and (b) Cynthia Jemison be hired as principal. (Doc. #56,
Ex. B, Primm Dep. at 44-45).

The Board took action in accordance with both of his

recommendations, basing its cancellation of Plaintiff’s contract, in particular, on “decreased
enrollment or decreased funding and failure to obtain/maintain certification in current status.”
(Doc. #5 at 32).
III.

Standard of Review
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The party asking for summary judgment always bears the initial responsibility of
informing the court of the basis for its motion and identifying those portions of the pleadings or
filings which it believes demonstrate the absence of a genuine issue of material fact. Celotex,
477 U.S. at 323. Once the moving party has met its burden, Rule 56(c) requires the non-moving
party to go beyond the pleadings and by her own affidavits, or by the depositions, answers to

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interrogatories, and admissions on file, designate specific facts showing that there is a genuine
issue for trial. See id. at 324.
The substantive law will identify which facts are material and which are irrelevant. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts about the facts
and all justifiable inferences are resolved in favor of the non-movant. See Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If
the evidence is merely colorable, or is not significantly probative, summary judgment may be
granted. See id. at 249.
If the moving party bears the burden of proof at trial, it can only meet its initial burden on
summary judgment by coming forward with positive evidence demonstrating the absence of a
genuine issue of material fact (i.e., facts that would entitle it to a directed verdict if not
controverted at trial). Fitzpatrick, 2 F.3d at 1115. Once the moving party makes such a showing,
the burden shifts to the nonmoving party to produce significant, probative evidence
demonstrating a genuine issue for trial.
If the moving party does not bear the burden of proof at trial, it can satisfy its initial
burden on summary judgment in either of two ways. First, the moving party may produce
affirmative evidence negating a material fact, thus demonstrating that the nonmoving party will
be unable to prove its case at trial. Once the moving party satisfies its burden using this method,
the nonmoving party must respond with positive evidence sufficient to resist a motion for
directed verdict at trial.
The second method by which the moving party who does not bear the burden of proof at
trial can satisfy its initial burden on summary judgment is to affirmatively show the absence of

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evidence in the record to support a judgment for the nonmoving party on the issue in question.
This method requires more than a simple statement that the nonmoving party cannot meet its
burden at trial, but does not require evidence negating the nonmovant=s claim; it simply requires
the movant to show that there is an absence of evidence to support the nonmoving party=s case.
Fitzpatrick, 2 F.3d at 1115-16.
If the movant meets its initial burden by using this second method, the nonmoving party
may either rely on evidence in the record, overlooked or ignored by the movant, sufficient to
withstand a directed verdict, or the nonmoving party may come forward with additional evidence
that is sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary
deficiency. However, when responding, the nonmovant can no longer rest on mere allegations,
but must set forth evidence of specific facts. Lewis v. Casey, 518 U.S. 343, 358 (1996) (citing
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).
IV.

Discussion
After careful review of the Rule 56 record and the parties’ briefs, and for the reasons

stated below, the court concludes that Defendant’s motion is due to be denied.
Plaintiff’s Second Amended Complaint (Doc. #5) advances two causes of action: (1)
discrimination in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”),
and (2) retaliation in violation of the ADEA.2 Plaintiff’s claims are primarily based on the
affidavit testimony of Bobbie Pope-Dubose, who asserts that Superintendent Primm made
discriminatory remarks concerning Plaintiff during the interview process for the new principal
position at Livingston Jr. High School. (Doc. #58, Ex. B).
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Plaintiff’s Second Amended Complaint also purports to state a claim under Title VII of the Civil Rights
Act of 1964. However, during a telephone conference held on December 6, 2012, Plaintiff confirmed that the only
claims she is asserting against Defendant are age discrimination and retaliation under the ADEA. This information
is reflected in the court’s order issued that same day. Consequently, the court only considers Plaintiff’s age
discrimination and retaliation claims, as those are the only claims remaining in this case.

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Defendant’s Motion for Summary Judgment (Doc. #55) seeks judgment as to both of
Plaintiff’s claims. In its Brief in Support of Summary Judgment (Doc. #56), Defendant primarily
argues that Plaintiff’s claims fail under the McDonnell-Douglas burden-shifting framework,
which is used to evaluate ADEA claims that rely on circumstantial evidence. (Doc. #56 at 1623). However, in doing so, Defendant not only misconstrues the supporting evidence set forth by
Plaintiff, but also fails to comprehend the applicable standard for summary judgment. Indeed,
Plaintiff’s claims (particularly her claim for age discrimination) appear to rely upon direct
evidence of discrimination (i.e., Superintendent Primm’s remarks, as recalled by Pope-Dubose,
that because of Plaintiff’s age, she should be scored lower than the other candidates). (Doc. #58,
Ex. B). Alternatively, even if this evidence is more properly viewed as circumstantial evidence, it
is sufficient to create a genuine issue of material fact, rendering summary judgment inappropriate
at this time. Pope-Dubose has testified via affidavit that Primm told the committee (1) to score
Plaintiff lower due to her age, (2) that he intended to recommend a younger employee for the
position, and (3) that based upon the lower scores received by Plaintiff (which was 2.5 points
lower than Thomas, the incumbent), he did recommend Plaintiff for the position. The fact that
her testimony stands alone among that of the other committee members is of no moment here.
At this stage of the proceedings, the court may not evaluate the credibility of a witness such as
Pope-Dubose. Her testimony is sufficient to get this case to a jury.3 Accordingly, Rule 56

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Summary judgment is only applicable where “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). A dispute about a material fact 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). Here, Pope-Dubose’s affidavit creates genuine issues of material fact as to
(1) whether Superintendent Primm actually instructed the interview committee to give Plaintiff lower marks on the
basis of her age, (2) whether the members of the interview committee actually graded Plaintiff’s interview more
harshly as a result of Superintendent Primm’s exhortations, and (3) whether the Board was ultimately influenced by
Superintendent Primm’s allegedly discriminatory remarks. 3 Moreover, at the very least, Plaintiff has presented
sufficient evidence for a jury to conclude that Defendant Board’s cancellation of Plaintiff’s contract and selection of
a different candidate for the position of principal were motivated by age discrimination.

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disposition of this matter is inappropriate, rendering Plaintiff’s Motion for Summary Judgment
(Doc. #55) due to be denied.
V.

Conclusion
For the reasons stated above, Defendant’s Motion for Summary Judgment (Doc. #55) is

due to be denied. Separate orders consistent with this memorandum opinion will be entered.
DONE and ORDERED this August 6, 2014.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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