Hamner v. Tuscaloosa County School System et al
MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 2/17/2021. (PSM)
2021 Feb-17 PM 02:52
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SCHOOL SYSTEM, et al.,
MEMORANDUM OF OPINION
Plaintiff Shannon Hamner (“Hamner”) brings this action against her former
employer, Defendant Tuscaloosa County School System (“TCSS”), and three of
TCSS’s employees, Defendants Walter Davie (“Davie”), Allison Mays (“Mays”),
and Clifton Henson (“Henson”) (collectively, the “Individual Defendants”). In
Count I of Hamner’s complaint, she asserts claims against TCSS and the Individual
Defendants (collectively, “Defendants”) for retaliation under 42 U.S.C. § 1981
brought pursuant to 42 U.S.C. § 1983.1 In Counts III and VI, Hamner asserts claims
against TCSS for retaliation under Title VII of the Civil Rights Act of 1964,
In Count II, Hamner asserted claims of retaliation under 42 U.S.C. § 1981, which the Court
previously dismissed. (See doc. 78.)
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42 U.S.C. § 2000e et seq. (“Title VII”). In Count IV, Hamner asserts a gender
discrimination claim against TCSS under Title VII. In Count V, Hamner alleges she
was subjected to a sexually hostile work environment by TCSS in violation of Title
VII. In Count VII, Hamner asserts a state law claim for battery against Henson.
Before the Court are Defendants’ Motions for Summary Judgment (docs. 84
& 86); TCSS’s Motion for Reconsideration (doc. 90); Defendants’ Motions to
Strike (docs. 96, 97, 98, 101, 102, 103, 114, 117, 118, 119, & 120); and TCSS’s Motion
to Deem Statements of Facts Admitted (doc. 115). The motions are fully briefed and
ripe for review. For the reasons stated below, Defendants’ Motions for Summary
Judgment are due to be granted in part, denied in part, and terminated as moot in
part; TCSS’s Motion for Reconsideration is due to be denied; TCSS’s Motion to
Deem Statements of Facts Admitted is due to be denied; and Defendants’ Motions
to Strike are due to be terminated as moot in part and denied in part.
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Hamner, a Caucasian female, was employed by TCSS for over twenty years.
Most recently, she worked as a guidance counselor at Hillcrest Middle School
(“HMS”) and later at Collins-Riverside Middle School (“CRMS”).
While at HMS, Hamner filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”). She alleged that she had been
harassed and discriminated against because of her race and gender. This EEOC
charge was the basis of a lawsuit filed on June 3, 2015 against TCSS and two
employees who are not part of the instant case. See generally Hamner v. Pruitt, No.
7:15-cv-00925-LSC (N.D. Ala. June 2, 2015) [hereinafter “Hamner I”].3
As Hamner I was pending, Hamner requested a transfer from HMS to CRMS.
The parties dispute the circumstances surrounding this transfer. Hamner states that
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. These are the “facts” for summary judgment purposes
only. They may not be the actual facts. See Cox v. Adm'r U.S. Steel & Carnegie, 17 F.3d 1386, 1400
(11th Cir. 1994). The Court is not required to identify unreferenced evidence supporting a party’s
position. As such, review is limited to exhibits and specific portions of the exhibits specifically cited
by the parties. See Chavez v. Sec’y Fla. Dept. of Corr., 647 F.3d 1057, 1061 (11th Cir. 2011)
(“[D]istrict court judges are not required to ferret out delectable facts buried in a massive
record . . . .”).
Hamner goes to great lengths discussing the facts from her complaint in Hamner I. That
case is not presently before the Court, and the facts recited by Hamner are irrelevant and
immaterial to this matter. Hamner I will be discussed in as much detail as is required to address
Hamner’s claims of retaliation arising from Hamner I.
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she was “coerced” by Davie, the superintendent of education, into submitting a
request for a voluntary transfer. 4 (Doc. 92-2 at 31.) Hamner further states that
Defendants did not process her request as a voluntary transfer for a tenured
employee, but rather they “unassigned” and “reassigned” her to a temporary
position at CRMS, which was only guaranteed funding for one year. 5 She contends
that this was not proper procedure for considering a voluntary transfer request from
a tenured employee, and that she was entitled to notice and the opportunity to
TCSS challenges this, arguing that Hamner’s citations to her answers to interrogatories to
support her assertions of fact are insufficient. Answers to interrogatories are a form of evidence
that may be used as evidence at summary judgment. See Fed. R. Civ. P. 56(c)(1)(A). The form of
Hamner’s declaration under penalty of perjury is not a blanket admission that she lacks personal
knowledge regarding her answers to interrogatories, as argued by Defendants. This is clear by
reading Hamner’s answers. As such, Hamner’s answers to interrogatories may be considered in
her response to Defendants’ motions for summary judgment. Additionally, it is worth noting that
Defendants’ own evidentiary material includes Hamner’s transfer request, where she states that
“Davie proposed my transfer to CRMS.” (See doc. 83-2 at 18.)
Hamner’s assertion does not violate the best evidence rule, as argued by TCSS. See Fed.
R. Evid. 1002 (“an original writing, recording, or photograph is required in order to prove its
contents unless these rules or a federal statute provides otherwise.”). Hamner is testifying to her
personal knowledge regarding TCSS’s procedures, which she likely had familiarity with as a
tenured employee. See, e.g., Allstate Ins. Co. v. Swann, 27 F.3d 1539, 1543 (11th Cir. 1994) (stating
that the best evidence rule does not “require production of a document simply because the
document contains facts that are also testified to by a witness” (quoting United States v.
Finkielstain, 718 F. Supp. 1187, 1192 (S.D.N.Y. 1989)). Furthermore, TCSS does not challenge the
accuracy of Hamner’s statement. Thus, viewing the evidence in the light most favorable to the
nonmoving party, the Court assumes that the manner in which Hamner was transferred was
inconsistent with her voluntary transfer request.
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request a hearing before her transfer to CRMS was approved. 6 Regardless, Hamner’s
request was approved by TCSS, and she was transferred to CRMS effective August
16, 2016. 7 Hamner asserts that when TCSS approved her transfer, her pending
lawsuit was also discussed, but this is not supported by the record. 8 After her
transfer, the parties reached a settlement agreement in Hamner I, and that matter
was dismissed on October 24, 2016.
TCSS disputes this, arguing that it violates the best evidence rule. Hamner’s statement
does not violate this rule. In her argument, she cites to Alabama Code § 16-24C-7, which outlines
the proper procedure for transferring a tenured employee. (See doc. 92-2 at 35.) Thus, Hamner did
not need to produce any TCSS policy or procedure regarding transfers as she states she was not
afforded her statutory right to request a hearing.
Hamner “disputes and denies the facts asserted” by TCSS regarding the approval of her
transfer request and the effective date of her transfer. (Doc. 111 at 3 ¶ 9.) Hamner cites to a
paragraph in her declaration in which she asserts that TCSS’s statements have “purported
operative facts that are false and/or also imply purported facts that are false.” (Doc. 92-1 at 28
¶ 75.) A declaration is a form of evidence that may be used to support a party’s assertion of fact at
summary judgment. See Fed. R. Civ. P. 56(c)(1)(A). However, a declaration must also “be made
on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant
or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). Here, Hamner
does not set out any facts, but instead makes conclusory statements regarding TCSS’s statements
of fact. This is insufficient to create a dispute of material fact when Defendants cite to admissible
evidence in support of their assertions. To the extent that Hamner disputes Defendants’ facts that
are supported by the evidentiary record with only the conclusory statement identified above,
Hamner has failed to create any disputes of material fact; therefore, the Court adopts Defendants’
statements as fact. As to Defendants’ facts that are unsupported by their citations to the
evidentiary record, they cannot be considered by the Court regardless of the merit, or lack thereof,
of Hamner’s responses to those facts.
Hamner refers to a board meeting where she claims Hamner I was discussed, but the parties
have not produced the minutes from this meeting in their evidentiary materials. Hamner has not
demonstrated she has personal knowledge as to what was discussed during the meeting. Also, she
has produced no admissible evidence to support her assertion that Hamner I was the only pending
lawsuit discussed during that meeting, and that it was discussed in conjunction with her transfer
to CRMS. Thus, the Court does not consider this assertion in its analysis.
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While at CRMS, Hamner reported being subjected to poor working
conditions. She states that her office “had a crumbling, leaking hole in its ceiling”
that she claims was “contaminated by mold and asbestos.” (Doc. 111 at 22 ¶ 55.) She
filed an injury report and submitted documentation from her doctors concerning
health issues she believes arose from her working conditions at CRMS. 9 (See doc. 834 at 39–42.) She requested a transfer to a different office at CRMS, which was
denied. The counselor who shared an office with Hamner was allowed to move to a
newer office. Hamner noted that her working conditions were markedly different
from those at HMS.
In addition to her work as a guidance counselor, Hamner was also the
chairperson for the “504 Teams” during her time at HMS and CRMS. Schools are
required to provide “504 Plans” for qualified students to aide them as they pursue
their education. These teams are comprised of employees and parents of qualifying
children. In addition to Hamner, other employees on CRMS’s 504 Team included
Henson, the principal at CRMS; Marlana Mason (“Mason”); and Becky Stephens
Defendants included Hamner’s injury report that she filed regarding her health issues in
their joint evidentiary submission; therefore, TCSS’s best evidence rule objection is meritless.
Defendants also included notes from Hamner’s doctors concerning her health evaluations, thus
addressing their objections as to the content of those notes.
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The parties dispute what the responsibilities of the chairperson were versus
the responsibilities of the other members of the 504 Team. Hamner asserts that (1)
she lacked any supervisory authority over members of the 504 Team; and (2) all
members of the 504 Team were responsible for compiling plans, scheduling, and
providing notice of meetings to parents to discuss the plans. 10 TCSS asserts that as
chairperson, Hamner was responsible for those duties.
In May 2017, employees noticed that the 504 Plans submitted by Hamner had
photocopied, pre-signed, and postdated pages indicating the team members agreed
with the proposed plans. Greg Hurst (“Hurst”), TCSS’s 504 Plan coordinator for
all students in the school system, was notified about this situation.
Meanwhile, Hamner notified Mays, the senior director of human resources,
of concerns she had regarding Henson. Hamner reported a series of incidents
involving Henson: (1) he drove the wrong way on a one-way street while Hamner
was chatting with another teacher outside of the school; (2) he emailed her
TCSS objects to this statement as both speculative and violative of the best evidence rule.
Hamner is stating what her role as chairperson encompassed. TCSS points out that Hamner did
not offer any policy or portion of a manual stating what her authority and duties were as
chairperson. However, neither did TCSS, which would certainly have access to such manuals.
Defendants jointly submitted 711 pages of evidentiary material and did not identify or cite to their
own manual in support of the chairperson’s responsibilities. Instead, TCSS cites to affidavits to
support the proposition that Hamner had certain job responsibilities as chairperson, which is no
different from Hamner citing to her own sworn declaration.
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concerning an absence from school; (3) he allegedly went through her phone log and
desk; and (4) Henson reportedly told employees at CRMS to provide him with their
system passwords. After receiving this report, Mays scheduled a meeting with
Hamner to discuss her concerns. This meeting took place on July 28, 2017. At the
end of this meeting, Hamner was placed on administrative leave with pay by Davie
pending an investigation into her 504 Plans.
As the meeting ended, Hamner reported she was sexually harassed on
multiple occasions by Henson. 11 Hamner states that Henson “suggestively touched
[her] hand” on two occasions and that Henson “pressed the front of his body against
the back of [her] body” until she asked him to stop. 12 (Doc. 92-1 at 20 ¶¶ 55 & 56.)
The parties dispute the precise timing of this report. The Individual Defendants state that
Hamner did not inform Mays of her sexual harassment allegations against Henson until after
Hamner was placed on administrative leave. Hamner states that she informed Mays prior to being
placed on administrative leave.
Hamner also claims that Henson “made statements denigrating other women based on
their gender,” but Hamner does not cite to anything in the evidentiary record to support this
allegation. (Doc. 112 at 25 ¶ 100.) Additionally, Hamner asserts that Henson harassed other
women, and that those women filed complaints with TCSS. (Docs. 112 at 25; 92-2 at 104–05 &
210–11.) The Individual Defendants object to this statement of fact as it is conclusory and Hamner
lacks personal knowledge as to whether other employees made reports about Henson or whether
Henson “harassed a buxom female CRMS teacher by staring at her breasts.” (Doc. 112 at 25
¶ 100.) The Individual Defendants are correct in that Hamner’s statement that Henson “harassed
a buxom female” is conclusory, thus the Court does not consider it. Hamner also states that she
“was told by Mrs. McKellar that Beth Babin reported Craig Henson’s remarks to TCSS’s board,”
suggesting that other employees complained to TCSS about Henson’s behavior. (Doc. 92-2 at
210.) This statement is hearsay within hearsay, and Hamner has not produced any other evidence
demonstrating personal knowledge; therefore, the Court does not consider this in its analysis.
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All of these interactions were offensive to Hamner. Henson denied that these
interactions occurred. Mays investigated all of Hamner’s allegations concerning
Henson and found them to be meritless. Hamner was informed of these conclusions
on September 1, 2017.
While Mays investigated Hamner’s allegations against Henson, TCSS’s
investigation into Hamner’s 504 Plans revealed irregularities. Defendants state that
504 Teams hold meetings to discuss 504 Plans. During these meetings, attendees
must sign forms stating whether they agree or disagree with the proposed plans.
Defendants discovered that Hamner used pre-signed and postdated forms instead of
having all members sign the plans during the meeting. Hamner states that she was
encouraged to do this by Hurst, which he denies. Defendants assert that Hamner
photocopied these pre-signed forms and used them on eighteen occasions to indicate
that team members approved of 504 Plans, and that in many instances the required
meetings never took place. TCSS also states that Hamner used these forms without
the other team members’ permission. 13 Additionally, TCSS states that Hamner
Hamner disputes this, and states she used these forms with their permission. However, she
only offers inadmissible evidence to support the proposition that both Henson and Mason knew
that they were signing blank forms to be used for multiple 504 Plans. In her answers to
interrogatories, Hamner quotes from unidentified documents to support this contention. These
documents have not been produced as part of the parties’ evidentiary material, thus the Court has
no way of evaluating this evidence. Defendants have submitted affidavits from Henson and Mason
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changed language on the meeting notice forms, which TCSS argues discouraged
parents from participating in 504 Plan meetings. Davie also states that the
investigation revealed that Hamner mishandled confidential student records, which
On September 7, 2017, Davie, Mays, Hamner, and Hamner’s Alabama
Education Association representative participated in a meeting regarding her 504
Plans. Hamner admitted to having used pre-signed and postdated signature pages,
stating that this was common practice among 504 Teams throughout TCSS. Hamner
also stated that she had been engaged in this practice at HMS prior to Hamner I, as
the assistant principal at HMS supported using pre-signed and dated forms for 504
Plans. 14 Hurst reviewed and approved Hamner’s 504 Plans from HMS and CRMS.
where they attest that they did not give permission to Hamner to photocopy and use pre-signed
forms. Thus, the Court can only consider the affidavits in its analysis.
TCSS objects to Hamner’s assertion stating that this is hearsay and that it violates the
“dead man’s rule.” (Doc. 130 at 4.) Hamner is stating what she believes was common practice
regarding 504 Plans, and this is not hearsay. While Hamner’s testimony may or may not be
credible, the Court’s role is to determine whether there are any disputed material facts such that
summary judgment should be denied. Weighing the credibility of witness testimony is properly
determined by a jury, not the Court.
Concerning the “dead man’s rule,” the Court is unclear as to what TCSS is referring as
there is no such rule in the Federal Rules of Evidence and TCSS does not cite to any rule or statute
in its brief. Alabama has a “dead man’s statute,” see Ala. Code § 12-21-163, but this was abrogated
by the passage of Rule 601 of the Alabama Rules of Evidence. See Ala. R. Evid. 601 (“Every person
is competent to be a witness except as otherwise provided in these rules.”); Schoenvogel ex rel.
Schoenvogel v. Venator Grp. Retail, Inc., 895 So. 2d 225, 258 (Ala. 2004) (recognizing that
Alabama’s dead man statute “has been superseded by Rule 601, Ala. R. Evid.”). Even if Alabama’s
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TCSS disputes this assertion, pointing out that the plans Hurst reviewed were copies
that “would not show that signatures were not original signatures,” thus he would
have been unaware that Hamner was using pre-signed forms. (Doc. 130 at 3.)
Hamner states that Hurst supported this practice as well, which he denies.
Hamner believes her 504 Plans were suddenly scrutinized because of her
participation in Hamner I. Hamner asserts that Reba Box, the previous chairperson
at CRMS, submitted altered forms as part of her 504 Plans, and she was not
investigated and terminated for this. 15 Additionally, Hamner states that Brad
dead man’s statute was still good law, it would be inapplicable here as all of the claims against
TCSS arise under federal statutes. See Fed. R. Evid. 601 (providing that, in diversity cases, “state
law governs the witness’s competency regarding a claim or defense for which state law supplies
the rule of decision”). Furthermore, even if this matter was before the Court under diversity
jurisdiction and Alabama’s dead man’s statute had not been superseded, the statute would still be
inapplicable as it only applies to cases where “(1) the estate of the deceased [is] interested in the
outcome of the suit; (2) the witness [has] a pecuniary interest in the result of the proceedings; and
(3) the testimony of the witness . . . relates to a personal transaction with the decedent.”
Schoenvogel, 895 So.2d at 243 (quoting Bank of the Se. v. Koslin, 380 So.2d 826, 829 (Ala. 1980)).
Accordingly, all of TCSS’s objections to Hamner’s evidence based on the “dead man’s rule” are
While TCSS disputes this fact, it is worth noting that they do not dispute the accuracy of
Hamner’s assertion. TCSS states that Hamner is speculating that TCSS never disciplined another
employee because of their 504 Plans. Documents in Defendants’ evidentiary material, however,
support Hamner’s assertions that other employees submitted altered forms and were not
terminated for that. (See doc. 83-2 at 62 & 89; doc. 83-3 at 26.)
Also, Hamner has personal knowledge as to Reba Box’s 504 Plans, and also asked for those
Plans in her requests for production. (See doc. 92-3 at 5.) Hamner asserts that TCSS produced
three 504 Plans, when Hamner knows there were approximately twenty that should have been
produced. (See doc. 92-1 at 25 ¶71.) TCSS argues that Hamner’s failure to introduce into evidence
the referenced 504 Plans violates the best evidence rule; however, an original document is not
required when “the party against whom the original would be offered had control of the original;
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Armstrong, the chairperson of the 504 Team at another TCSS school, submitted
altered forms as well. 16
At the conclusion of the investigation, Hamner received a letter on September
14, 2017, stating that Davie was recommending that TCSS terminate her
employment. Davie informed Hamner that she had the right to request a hearing
before TCSS on this matter, which she did. After the hearing, TCSS voted to
terminate her employment. Hamner appealed her termination, and the decision was
affirmed. TCSS reported her termination to the Alabama Department of Education.
After Hamner was terminated, she filed an EEOC charge, which is the basis of the
STANDARD OF REVIEW
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact 17 and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A dispute is genuine if “the record taken as a
was at that time put on notice, by pleadings or otherwise, that the original would be a subject of
proof at the trial or hearing; and fails to produce it at the trial or hearing.” Fed. R. Evid. 1004.
TCSS objects, stating that Hamner’s statement violates the best evidence rule. Although
Hamner does not directly cite to this evidentiary material, the altered form to which Hamner refers
is included in Defendants’ joint evidentiary submission. (See doc. 83-4 at 36–38.)
A material fact is one that “might affect the outcome of the case.” Urquilla-Diaz v. Kaplan
Univ., 780 F.3d 1039, 1050 (11th Cir. 2015).
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whole could lead a rational trier of fact to find for the nonmoving party.” Hickson
Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004). A genuine dispute as
to a material fact exists “if the nonmoving party has produced evidence such that a
reasonable factfinder could return a verdict in its favor.” Greenberg v. BellSouth
Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (per curiam) (quoting Waddell
v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001)). The trial judge
should not weigh the evidence, but should determine whether there are any genuine
issues of fact that should be resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249 (1986).
In considering a motion for summary judgment, trial courts must give
deference to the nonmoving party by “view[ing] the materials presented and all
factual inferences in the light most favorable to the nonmoving party.” Animal Legal
Def. Fund v. U.S. Dep’t of Agric., 789 F.3d 1206, 1213–14 (11th Cir. 2015) (citing
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). However, “unsubstantiated
assertions alone are not enough to withstand a motion for summary judgment.”
Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987). Conclusory
allegations and a “mere scintilla of evidence in support of the nonmoving party will
not suffice to overcome a motion for summary judgment.” Melton v. Abston, 841 F.3d
1207, 1219 (11th Cir. 2016) (per curiam) (quoting Young v. City of Palm Bay, 358 F.3d
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859, 860 (11th Cir. 2004)). In making a motion for summary judgment, “the moving
party has the burden of either negating an essential element of the nonmoving party’s
case or showing that there is no evidence to prove a fact necessary to the nonmoving
party’s case.” McGee v. Sentinel Offender Servs., LLC, 719 F.3d 1236, 1242 (11th Cir.
2013) (per curiam). Although the trial courts must use caution when granting
motions for summary judgment, “[s]ummary judgment procedure is properly
regarded not as a disfavored procedural shortcut, but rather as an integral part of the
Federal Rules as a whole.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
Defendants have raised substantial challenges to Hamner’s briefing of the
summary judgment motions. The Court will address each challenge in turn.
A. TCSS’s Motion for Reconsideration (Doc. 90)
On October 19, 2020, Hamner filed a Motion for Extension of Time to File
Response. (Doc. 88.) The Court granted this extension. (See doc. 89.) TCSS filed a
motion asking the Court to reconsider its order granting the extension of time. (See
doc. 90.) The Court prefers to rule on the summary judgment motions on the merits,
thus it is taking into consideration the extensive briefing for these motions, including
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briefs filed after the initial deadline for responses and replies. Accordingly, TCSS’s
motion is due to be denied.
B. Defendants’ Motions to Strike Plaintiff’s Response Briefs (Docs. 98,
101, 114, & 119)
Hamner filed her original response briefs on November 2, 2020 (docs. 94 &
95). Her briefs failed to comply with the Court’s Uniform Initial Order (doc. 24).
Hamner did not include a statement of disputed and undisputed facts. As such,
Defendants filed motions to strike her response briefs. (Docs. 98 & 101.) The Court
granted Hamner leave to file new response briefs that complied with the Court’s
Order. (See doc. 104.) Hamner submitted reformatted response briefs that corrected
the primary deficiencies in her original submissions. (See docs. 111 & 112.)
Accordingly, Defendants’ motions regarding Hamner’s original response briefs are
due to be terminated as moot.
As to Defendants’ motions to strike Hamner’s reformatted briefs, the Court
agrees that Hamner does not fully comply with the Court’s Order; however, Hamner
addressed the primary issues present in her original briefs. Hamner’s reformatted
briefs have statements of disputed and undisputed facts. While Defendants take
issue with Hamner’s evidentiary support for many of these statements, the Court
will discuss those objections separately, and they are not such that they warrant
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striking her briefs. Accordingly, Defendants’ motions (docs. 114 & 119) are due to be
denied in part.
Defendants also argue that Hamner’s reformatted briefs should be struck for
failure to comply with page limitations for briefs. After Defendants filed their
motions to strike, the Court granted Hamner’s request to exceed the page limitation
for her briefs (see doc. 123); therefore, Defendants’ motions (docs. 114 & 119) are
due to be terminated as moot in part.
C. TCSS’s Motion to Deem Statements of Facts Admitted (Doc. 115)
TCSS argues that Hamner’s failure to strictly comply with the Court’s
Uniform Initial Order should be grounds for the Court to deem as admitted TCSS’s
statement of facts. TCSS objects to Hamner’s responses to their undisputed
statement of facts as well as to her statements of facts. While the Court acknowledges
that Hamner did not fully comply with the Court’s Order, this did not prejudice
TCSS. TCSS asked for and was granted additional pages in which to reply to
Hamner’s response brief. (See docs. 125 & 127.) As TCSS was able to fully respond
to Hamner’s statements of disputed and undisputed facts, the Court declines to
deem as admitted TCSS’s statement of facts.
TCSS also argues that Hamner’s failure to participate in the statement of
undisputed facts in the parties’ Joint Status Report should mean that those facts are
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deemed admitted. The Joint Status Report is meant to be a tool to aid the parties as
they draft their dispositive motions and is not a substitute for statements of disputed
and undisputed facts in their substantive motions. The Court denied Hamner an
extension of time in order to file her portion of the Joint Status Report. (See doc. 80.)
The Court did not do so to allow Defendants to take advantage of Hamner’s delay
in participating in the Joint Status Report, but rather to keep the summary judgment
briefing on schedule. As such, the Court does not deem the facts in the Joint Status
Report as undisputed for the purposes of summary judgment. Accordingly, TCSS’s
motion is due to be denied.
D. Defendants’ Motion to Strike Evidentiary Material (Docs. 96, 97, 102,
103, 117, 118, 120)
Defendants filed motions to strike Hamner’s declaration and answers to
interrogatories after Hamner filed her initial response briefs. (See docs. 96, 97, 102
& 103.) After Hamner filed her reformatted response briefs, Defendants filed
renewed motions to strike. (See docs. 117, 118 & 120.) TCSS’s Motion to Strike
Plaintiff’s Declaration (doc. 96); TCSS’s Motion to Strike Plaintiff’s Answers to
Interrogatories (doc. 97); and the Individual Defendants’ Motion to Strike Plaintiff’s
Declaration (doc. 103) are due to be terminated as moot as they were filed in response
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to Hamner’s initial submissions and Defendants filed renewed motions after
Hamner submitted her reformatted briefs.
Defendants argue that Hamner’s declaration or portions of her declaration
should be stricken. (See docs. 117 & 120.) Defendants object to portions of Hamner’s
declarations, generally arguing that her statements are not based on personal
knowledge; are irrelevant and immaterial; contain inadmissible hearsay; are
conclusory; violate the best evidence rule; and violate the Dead Man’s Statute. The
Court has already addressed the majority of these objections. 18 The Court does not
consider irrelevant or immaterial evidence in its analysis, and it disregards
statements made by all parties that are conclusory. The Court also does not consider
inadmissible hearsay and evidence that cannot be reduced to admissible form by trial.
Finally, the Court does not consider evidence that has no basis in personal knowledge
or that violates the best evidence rule; however, the Court denies the majority of
Defendants objections on these bases. 19 Furthermore, as previously explained,
TCSS’s objections based on the Dead Man’s Statute are inapplicable in this matter
and are due to be denied. Accordingly, Defendants’ motions (docs. 117 & 120) are
due to be terminated as moot in part and denied in part.
See generally Part II.
See generally id.
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Defendants also seek to strike Hamner’s answers to interrogatories, arguing
that her answers are not based on personal knowledge, are “rife with hearsay,
conjecture, speculation,” and are conclusory. (Doc. 118 at 3 ¶8.) Many of Hamner’s
answers to interrogatories are based on personal knowledge and refer to admissible
evidence or evidence that may be reduced to admissible form by trial. Again, the
Court does not consider irrelevant, immaterial, and inadmissible evidence in its
analysis. Accordingly, Defendants’ motions (docs. 102 & 118) are due to be
terminated as moot in part and denied in part.
Hamner brings four types of claims against Defendants. First, Hamner claims
she was retaliated against because of her participation in Hamner I and because of
her subsequent reports of sexual harassment. Second, Hamner claims she was
discriminated against on the basis of sex. Third, Hamner claims she was subjected to
a sexually hostile work environment. Fourth, Hamner claims she was a victim of
battery. Defendants have moved for summary judgment on all claims.
A. Discrimination Claims
Title VII prohibits, among other conduct, “discriminat[ion] against any
individual with respect to [her] terms, conditions, or privileges of employment,
Page 19 of 43
because of such individual’s race [or] sex.” 42 U.S.C. § 2000e-2(a)(1). “[A]
plaintiff may use three different kinds of evidence of discriminatory intent: direct
evidence, circumstantial evidence or statistical evidence.” Standard v. A.B.E.L.
Servs. Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). Title VII and § 1981 “have the same
requirements of proof and use the same analytical framework.” Id.
Absent direct evidence of sex discrimination or retaliation, such as specific
statements made by the employer’s representatives, a plaintiff may demonstrate
circumstantial evidence of discrimination through the McDonnell Douglas burdenshifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see
also Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). 20 Under this
framework, the aggrieved employee creates a presumption of unlawful
discrimination by first establishing a prima facie case of discrimination. See Lewis v.
City of Union City, 918 F.3d 1213, 1220–21 (11th Cir. 2019) (en banc). The burden
then shifts to the employer “to articulate a legitimate, nondiscriminatory reason for
its actions.” Id. at 1221 (citing Burdine, 450 U.S. at 253). If the employer proffers a
legitimate, nondiscriminatory reason, the burden returns to the employee to prove
“Direct evidence of discrimination would be evidence which, if believed, would prove the
existence of a fact without inference or presumption.” Carter v. City of Miami, 870 F.2d 578, 581–
82 (11th Cir. 1989). Because Hamner has not offered any direct evidence of discrimination, the
Court addresses her claims under the standards applicable to circumstantial evidence of
discrimination. See Alvarez v. Royal Atl. Devs., Inc., 610 F.3d 1253, 1264 (11th Cir. 2010).
Page 20 of 43
that the employer’s reason is a pretext for unlawful discrimination. Crawford v.
Carroll, 529 F.3d 961, 976 (11th Cir. 2008).
Although the McDonnell Douglas framework is one way of showing
discriminatory intent, it is not the only way to show discriminatory intent in a Title
VII discrimination claim. See Smith v. Lockheed–Martin Corp., 644 F.3d 1321, 1328
(11th Cir. 2011). “[T]he plaintiff will always survive summary judgment if [s]he
presents circumstantial evidence that creates a triable issue concerning the
employer’s discriminatory intent.” Id.
Hamner claims that she was retaliated against by Defendants for bringing
Hamner I and for opposing discriminatory practices at CRMS. A plaintiff
successfully establishes a prima facie case of retaliation if she demonstrates that (1)
she engaged in a statutorily protected activity; (2) she suffered an adverse
employment action; and (3) a causal link exists between the protected activity and
the adverse employment action. See, e.g., Brown v. Ala. Dep’t of Transp., 597 F.3d
1160, 1181 (11th Cir. 2010).
To prove an adverse employment action in the context of a retaliation claim,
the “plaintiff must show that a reasonable employee would have found the
challenged action materially adverse,” meaning that “it well might have dissuaded a
Page 21 of 43
reasonable worker from making or supporting a charge of discrimination.”
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quoting Rochon v.
Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)); see also Crawford, 529 F.3d at 974.
An adverse employment action need not be as serious as outright termination. See
Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1998). It may also
include “adverse actions which fall short of ultimate employment decisions,” such
as written reprimands. Id. at 1455–56. The Eleventh Circuit has noted that “the
cumulative weight of numerous individual incidents can be considered in
determining whether the employee experienced materially adverse action.” Putman
v. Sec’y., Dep’t of Veterans Affs., 510 F. App’x 827, 831 (11th Cir. 2013) 21 (per curiam)
(citing Shannon v. BellSouth Telecomms., Inc., 292 F.3d 712, 716 (11th Cir. 2002)); see
also Wideman, 141 F.3d at 1456.
To prove a causal link between the protected activity and the adverse
employment action, a plaintiff must show that but-for the employer’s desire to
retaliate, she would not have suffered the adverse employment action. Booth v. Pasco
Cnty., 757 F.3d 1198, 1207 (11th Cir. 2014) (citing Univ. of Tex. Sw. Med. Ctr. v.
Nassar, 570 U.S. 338, 363 (2013)). A plaintiff can establish a causal connection if she
“Unpublished opinions are not considered binding precedent, but they may be cited as
persuasive authority.” 11th Cir. R. 36-2.
Page 22 of 43
can show “sufficient evidence” that the employer knew of her statutorily protected
activity and “that there was a close temporal proximity between this awareness and
the adverse . . . action.” Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004)
(quoting Shotz v. City of Plantation, 344 F.3d 1161, 1180 n.30 (11th Cir. 2003)); see
Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per curiam) (holding that
the temporal proximity must be “very close”). A plaintiff may also establish a causal
connection even if “there was a significant time gap between the protected activity
and the adverse action” if there is sufficient “additional evidence to demonstrate a
causal connection, such as a pattern of antagonism or that the adverse action was the
first opportunity for the employer to retaliate.” Ward v. UPS, 580 F. App’x 735, 739
(11th Cir. 2014)22 (per curiam); see also Pennington v. City of Huntsville, 261 F.3d
1262, 1266 (11th Cir. 2001) (“The causal link element is construed broadly so that
‘a plaintiff merely has to prove that the protected activity and the negative
employment action are not completely unrelated.’” (quoting Olmstead v. Taco Bell
Corp., 141 F.3d 1457, 1460 (11th Cir. 1998)).
a. TCSS—Counts I, III, IV
“[A] plaintiff must use the remedial provisions of § 1983 to enforce against
state actors the rights created by § 1981.” Butts v. Cnty. of Volusia, 222 F.3d 891, 892
Page 23 of 43
(11th Cir. 2000). Section 1981 “encompasses claims of retaliation.” Bryant v. Jones,
575 F.3d 1281, 1301 (11th Cir. 2009) (quoting CBOCS West, Inc. v. Humphries, 553
U.S. 442, 457 (2008)). “Title VII and [§] 1983 claims have the same elements where
the claims are based on the same set of facts [and] are subject to the same legal
analysis.” Quigg v. Thomas Cnty. Sch. Dist., 814 F.3d 1227, 1235 (11th Cir. 2016)
(alteration in original) (quoting Rioux v. City of Atl., 520 F.3d 1269, 1275 n.5 (11th
Cir. 2008)). Accordingly, the Court will discuss Hamner’s § 1983 and Title VII
TCSS does not dispute that Hamner satisfies the first two elements of her
prima facie case of retaliation in that she engaged in statutorily protected activities,
and she suffered an adverse employment action in that she was terminated. TCSS
argues that there is no causal link between Hamner’s termination and Hamner I or
her “protected opposition to and complaints about employment practices.” (Doc.
85 at 14.)
Hamner argues that her termination was not the only adverse employment
action she suffered, and that there is a causal link between her protected activity and
the adverse actions. Hamner argues that the following constitute adverse
employment actions: (1) being tricked into submitting a voluntary transfer request
separate from her settlement agreement in Hamner I; (2) her “unassignment” from
Page 24 of 43
HMS and “reassignment” to a temporary position at CRMS; (3) being forced to
work in an office at CRMS that negatively affected her health; (4) being forced to
work under Henson at CRMS, who she accused of sexually harassing her; and (5)
having her 504 Plans investigated only after she engaged in protected activity. 23
The test for whether an action is materially adverse is whether a reasonable
employee would be dissuaded from engaging in protected activity. The manner in
which Hamner was transferred might well dissuade a reasonable employee from
making or supporting a charge of discrimination. Likewise, the investigation into
Hamner’s 504 Plans and her ultimate termination could also dissuade a reasonable
employee from making or supporting a charge of discrimination. Viewing all of the
incidents cumulatively and in the light most favorable to the nonmoving party, a
reasonable jury could conclude that the series of actions taken together are materially
adverse as well.
TCSS also challenges whether there is a causal link between Hamner’s
participation in Hamner I, her reports of discrimination at CRMS, and her ultimate
Hamner also alleges that she suffered an adverse employment action when a witness
deposed during Hamner I threatened to sue her for involving her in the litigation. There is no
evidence presented by the parties to support that TCSS or the Individual Defendants had anything
to do with this witness’s statement. Hamner argues that because Defendants took no action to
address the witness’s threats, they tacitly approved of the threat. Defendants had no control over
the witness, and no reasonable jury could view Defendants as adopting the witness’s “retaliatory
threat.” (See doc. 111 at 46.)
Page 25 of 43
termination. Hamner describes multiple incidents over the course of a year, which
are temporally linked to Hamner I and to her EEOC charge in the instant case.
Furthermore, Hamner has presented sufficient evidence such that a reasonable jury
could conclude that there is a “pattern of antagonism” beginning with her transfer
to CRMS and concluding with her termination. As such, Hamner has established a
prima facie case of retaliation.
Next, the burden of production shifts to TCSS to provide a legitimate,
nondiscriminatory reason for the adverse actions. Brown, 597 F.3d at 1181. TCSS
states that Hamner’s 504 Plans were investigated because of a report that there were
irregularities with her forms, and that it terminated Hamner’s employment because
she modified and falsified 504 Plans at CRMS. Thus, TCSS has met its burden.
The burden then shifts back to Hamner to show that TCSS’s legitimate,
nondiscriminatory reasons were pretextual. Crawford, 529 F.3d at 976. A “plaintiff
can show pretext ‘either directly by persuading the court that a discriminatory
reason more likely motivated the employer or indirectly by showing that the
employer’s proffered explanation is unworthy of credence.’” Kragor v. Takeda
Pharms. Am., Inc., 702 F.3d 1304, 1308 (11th Cir. 2012) (quoting Burdine, 450 U.S.
at 256). In determining whether the proffered reason is pretextual, courts are not in
the “business of adjudging whether employment decisions are prudent or fair,” but
Page 26 of 43
rather “whether unlawful discriminatory animus motivates a challenged
employment decision.” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354,
1361 (11th Cir. 1999).
A reasonable jury could conclude that TCSS’s legitimate, nondiscriminatory
reasons are pretextual. Hamner completed her 504 Plans in the same manner before
Hamner I, and it was not until after she engaged in a protected activity that her
practices were suddenly scrutinized. Additionally, Hamner argues that TCSS has
shifting stated purported reasons for her termination. TCSS asserts that she was
terminated for modifying and falsifying her 504 Plans, but also argues that she was
terminated for emailing confidential student records. 24 Furthermore, Hamner
presented evidence of other employees who also altered forms without being
terminated. Hamner has presented sufficient evidence from which a reasonable jury
could conclude that TCSS’s explanations are pretextual as to all counts of
retaliation. Accordingly, TCSS’s motion is due to be denied as to Counts I, III, and
TCSS “adopts and incorporates” any positions the Individual Defendants take that “apply
to the claims against TCSS and its defenses thereto.” (Doc. 85 at 30.) The Individual Defendants
state that emailing confidential student records was one of the reasons Hamner was terminated.
(Doc. 87 at 16.) As TCSS adopts and incorporates this argument, this shifting stated purported
reason can also go to pretext.
Page 27 of 43
b. The Individual Defendants—Count I
Hamner also asserts claims of retaliation against the Individual Defendants in
their individual capacity under § 1983. The Individual Defendants argue that (1) they
are entitled to qualified immunity; and (2) they lacked the authority to terminate
Hamner, thus they cannot be responsible for any adverse employment actions.
Hamner counters, stating that (1) the Individual Defendants waived a defense of
qualified immunity by waiting until summary judgment to assert it; (2) qualified
immunity does not apply to Hamner’s claims against the Individual Defendants for
equitable relief; (3) Davie and Mays were acting outside of their discretionary
authority when they suspended and terminated her; (4) Hamner’s right to be free
from retaliation is clearly established.
“To be entitled to qualified immunity, a public official ‘must first prove that
he was acting within his discretionary authority when the allegedly wrongful acts
occurred.’” Dang ex. rel. Dang v. Sheriff, Seminole Cnty. Fla., 871 F.3d 1272, 1279
(11th Cir. 2017) (quoting Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)). To
show that he was acting within his discretionary authority, the public official must
prove that his actions “(1) were undertaken ‘pursuant to the performance of his
duties,’ and (2) were ‘within the scope of his authority.’” Id. (quoting Rich v. Dollar,
841 F.2d 1558, 1564 (11th Cir. 1988)).
Page 28 of 43
After a public official shows that he was acting within his discretionary
authority, the burden shifts to the plaintiff to show both that “the defendant violated
a constitutional right” or federal statute, and that “this right was clearly established
at the time of the alleged violation.” Holloman ex rel. Holloman v. Harland, 370 F.3d
1252, 1264 (11th Cir. 2004). In order for a right to be clearly established, there must
be “(1) case law with indistinguishable facts”; “(2) a broad statement of principle
within the Constitution, statute, or case law”; “or (3) conduct so egregious that a
constitutional right was violated even in the total absence of case law.” Hill v.
Cundiff, 797 F.3d 948, 979 (11th Cir. 2015) (quoting Lewis v. City of W. Palm Beach,
561 F.3d 1288, 1291–92 (11th Cir. 2009)). To determine if precedent clearly
establishes a right, it “must be particularized to the facts of the case” and “should
not be defined at a high level of generality.” White v. Pauly, 137 S. Ct. 548, 552 (2017)
(per curiam); see also Harbert Inter., Inc. v. James, 157 F.3d 1271, 1284 (11th Cir. 1998)
(stating that “clearly established principles of law will seldom if ever suffice to strip
a defendant of qualified immunity”).
First, the Individual Defendants did not waive their defense of qualified
immunity by first raising it on summary judgment. Contrary to Hamner’s
contention, there were no claims to which the Individual Defendants could have
raised a defense of qualified immunity until Hamner filed her Second Amended
Page 29 of 43
Complaint (doc. 45) on June 8, 2020. While the Individual Defendants could have
raised a defense of qualified immunity when they filed their Motion to Dismiss (doc.
54), they were not required to do so. See, e.g., Corbitt v. Vickers, 929 F.3d 1304, 1311
(11th Cir. 2019) (“Although ‘the defense of qualified immunity is typically addressed
at the summary judgment stage of a case, it may be . . . raised and considered on a
motion to dismiss.’” (quoting St. George v. Pinellas Cnty., 285 F.3d 1334, 1337 (11th
Cir. 2002)). Furthermore, allowing the Individual Defendants to raise qualified
immunity at summary judgment did not prejudice Hamner from being able to
adequately address this defense. She was granted additional pages and multiple
extensions of time in which to file her response brief. As such, the Court properly
considers the Individual Defendants’ defense of qualified immunity.
Second, Hamner has no claims for equitable relief against the Individual
Defendants as the only claim against them is for retaliation in their individual
capacities pursuant to § 1983. In her Second Amended Complaint, Hamner sought
equitable relief from the Individual Defendants in their official capacities and
damages from the Individual Defendants in their individual capacities. The Court
previously dismissed Hamner’s claims against the Individual Defendants in their
official capacities. (See doc. 78 at 13 n.6.) Furthermore, under § 1983, Hamner can
only sue the Individual Defendants in their “individual capacities for money
Page 30 of 43
damages.” Jones v. Buckner, 963 F. Supp. 2d 1267, 1281 (N.D. Ala. 2013). As Hamner
does not have any claims for equitable relief against the Individual Defendants, they
may assert qualified immunity for claims against them in their individual capacities
under § 1983.
Third, the Individual Defendants were acting within their discretionary
authority for every action Hamner asserts constitutes retaliation. Hamner argues
that Davie and Mays were acting outside of their discretionary authority when they
“suspended” her and effectively terminated her. 25 (Doc. 112 at 43–45.) Hamner was
not suspended but was placed on administrative leave with pay by Davie as
authorized by statute. See Ala. Code § 16-24C-9. Furthermore, Davie and Mays were
incapable of terminating her employment as, pursuant to Alabama law, only TCSS
has that authority. See Ala. Code § 16-8-23. Hamner cites to Harbert International for
the proposition that “a court must ask whether the act complained of, if done for a
proper purpose, would be within, or reasonably related to, the outer perimeter of an
official’s discretionary duties.” 157 F.3d at 1282 (quoting In re Allen, 106 F.3d 582,
594 (4th Cir. 1997)). Here, Hamner’s administrative leave and termination were
governed by statute. Thus, it is clear that Davie’s actions were within his
Hamner does not present evidence that Henson’s actions relative to her retaliation claim
were outside of his discretionary authority.
Page 31 of 43
discretionary duties. Neither Mays nor Henson are accused of any activities that fall
outside of their discretionary authority. Thus, the Individual Defendants have met
their burden for demonstrating why they are entitled to qualified immunity. The
burden, therefore, shifts to Hamner to show that they violated a right that was clearly
Before the Court determines if Hamner’s right to be free from retaliation is
clearly established, it first determines whether Hamner has established a prima facie
case of retaliation. As to Henson, she has not. No reasonable jury could conclude
that Henson took any adverse employment actions against Hamner. Thus, Hamner
has not met her burden to establish a prima facie case of retaliation against Henson.
As Henson did not violate Hamner’s right to be free from retaliation, he is entitled
to qualified immunity and the Individual Defendant’s motion is due to be granted as
Concerning Mays, Hamner makes no allegations against her that could
constitute an adverse employment action. As discussed previously, Mays could not
suspend or terminate Hamner, nor did she do so. Mays properly investigated
Hamner’s complaints concerning Henson, and that is the extent of Mays
involvement in this matter. No reasonable jury could conclude that this constitutes
an adverse employment action. Hamner has not established a prima facie case of
Page 32 of 43
retaliation against Mays, thus Mays has not violated Hamner’s right to be free from
retaliation. Accordingly, the Individual Defendant’s motion is due to be granted as
There are a series of adverse actions from which a reasonable jury could infer
a pattern of antagonism on the part of TCSS; however, as presented, only two of
these actions are linked to Davie. First, Davie recommended that Hamner submit a
voluntary transfer request while Hamner I was pending. Second, Davie
recommended that TCSS terminate Hamner’s employment. The first action is
temporally linked to Hamner I. The second action is not sufficiently temporally
linked to Hamner I to demonstrate a causal link as it took place close to a year after
that matter was settled. Hamner has not alleged any facts suggesting that Davie was
involved in any continuing adverse employment actions such that his
recommendation to TCSS could be linked back to Hamner I, which is the only basis
for her § 1983 claim for retaliation. Thus, assuming that Davie’s suggestion and his
recommendation that TCSS transfer Hamner to CRMS does establish a prima facie
case of retaliation, the Court examines whether Hamner has met her burden to show
this action violated a clearly established right, which she has not done.
Hamner cites to a single case for the proposition that she has a clearly
established right to be free from retaliation. See Bowman v. City of Birmingham, 777
Page 33 of 43
F. App’x 416 (11th Cir. 2019) (per curiam). 26 However, the facts of Bowman would
not put a reasonable official on notice that Davie’s action in this matter would
constitute retaliation. In Bowman, the plaintiff complained that black employees
were being disciplined more frequently than white employees for the same behavior.
After making that complaint, the plaintiff was “stripped of his supervisory duties
and authority over the staff,” reprimanded, and threatened with disciplinary action.
Id. at 418. The City of Birmingham investigated the plaintiff’s allegations, during
which time the plaintiff was temporarily transferred to an entry-level job. After the
investigation was completed, the plaintiff was transferred back to his original job.
The plaintiff continued to make other complaints about discriminatory conduct.
Shortly thereafter, the plaintiff was demoted.
These facts are distinguishable from the present case in that Davie did not
strip Hamner of any supervisory duties; Hamner was not reprimanded or threatened
with disciplinary action for reporting alleged disparate treatment; nor was she
involuntarily transferred and demoted. Hamner was voluntarily transferred, and her
job responsibilities at CRMS were exactly the same as her job responsibilities at
HMS. While Davie recommended Hamner submit a voluntary transfer request and
he recommended to TCSS that they approve her transfer, he did not involuntarily
See supra note 21.
Page 34 of 43
transfer her nor did he demote her. As this matter is factually distinguishable from
Bowman, this case does not provide notice to Davie that his actions could be
Additionally, the Court cannot say that Davie’s actions were so obviously
retaliatory that he should be deprived of qualified immunity. While there is no
question that Hamner has a right to be free from retaliation, she has not met her
burden of demonstrating that Davie would be on notice that his actions would violate
a clearly established right. Accordingly, Davie is entitled to qualified immunity, and
the Individual Defendants’ motion is due to be granted as to Davie, Mays, and
Disparate Treatment—Count IV
Hamner also brings a disparate treatment claim against TCSS. A plaintiff
establishes a prima facie case of intentional discrimination because of sex by showing
“(1) that she belongs to a protected class, (2) that she was subjected to an adverse
employment action, (3) that she was qualified to perform the job in question, and (4)
that her employer treated ‘similarly situated’ employees outside her class more
favorably.” Lewis, 918 F.3d at 1220–21. To satisfy the fourth prong of the prima facie
case, the proffered comparator must be similarly situated to the plaintiff “in all
material respects.” Id. at 1224. As the Eleventh Circuit has explained, “a valid
Page 35 of 43
comparison will turn not on formal labels, but rather on substantive likenesses.” Id.
at 1228. While the precise “similarity” is “to be worked out on a case-by-case basis,”
a similarly situated comparator “will have engaged in the same basic conduct (or
misconduct) as the plaintiff”; “will have been subject to the same employment
policy”; “will ordinarily (although not invariably) have been under the jurisdiction
of the same supervisor”; and “will share the plaintiff’s employment or disciplinary
history.” Id. at 1227–28.
It is undisputed that Hamner satisfies the first three elements of her prima facie
case. TCSS argues that Hamner has not presented any similarly situated
comparators outside her protected class. Hamner counters that she has produced a
similarly situated comparator in Armstrong, who is a male who also altered forms for
his 504 Plans. While Hamner has offered a comparator who was subject to the same
employment policy and who also reported to Hurst, it is not clear to the Court that
he engaged in the same basic misconduct or that he shared Hamner’s employment
and disciplinary history. While Armstrong did alter forms, he did not do so in the
same manner as Hamner. Furthermore, Hamner has produced no admissible
evidence to show that Armstrong was or was not disciplined for altering his forms.
Thus, Hamner has failed to meet her burden of producing a similarly situated
Page 36 of 43
comparator outside her protected class who was treated differently. Accordingly,
Hamner has not established a prima face case of disparate treatment because of sex.
Even if Hamner had produced a valid comparator, TCSS offered a legitimate,
nondiscriminatory reason for terminating her—she altered and falsified her 504
Plans and forms. Thus, the burden shifts back to Hamner to demonstrate that
TCSS’s reason for terminating her was pretextual for discriminating against her
because of her gender.
Hamner has presented no evidence that her termination for altering and
falsifying forms was pretextual for discriminating against her because of her gender.
Hamner argues that TCSS’s failure to follow its own policy when it did not provide
her with notice of her transfer to CRMS is evidence of pretext; however, Hamner
has provided no evidence to suggest that this was motivated by discriminatory
animus based on her gender as opposed to retaliation for her participation in
protected conduct. In short, all of Hamner’s arguments concerning pretext are in the
context of her retaliation claims, not her disparate treatment claim. Here, Hamner
has not met her burden of establishing pretext. Accordingly, TCSS’s motion as to
Count IV is due to be granted.
Page 37 of 43
Sexually Hostile Work Environment—Count V
Hamner brings a sexually hostile work environment claim against TCSS based
on alleged sexual harassment by Henson at CRMS.27 A separate violation of Title
VII occurs when “the workplace is permeated with [sexually] discriminatory
intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the
terms and conditions of the victim’s employment and create an abusive working
environment.” Jones v. UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2011)
(second alteration in original) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 116 (2002)).
To succeed on a sexually hostile work environment claim, a plaintiff must
prove that: (1) she belongs to a protected class; (2) she has been “subject[ed] to
unwelcome sexual harassment, such as sexual advances, requests for sexual favors,
and other conduct of a sexual nature”; (3) the harassment was because of the
plaintiff’s sex; (4) “the harassment was sufficiently severe or pervasive to alter the
terms and conditions of employment and create a discriminatorily abusive working
environment”; and (5) she has “a basis for holding the employer liable.” Reeves v.
In her response brief, Hamner asserts that she was also subject to a sexually hostile work
environment at HMS. Those allegations are not properly before the Court in this matter as the
hostile work environment at HMS was not part of Hamner’s EEOC charge or her Second
Amended Complaint. Hamner constrained her allegations to her time at CRMS. As such, the
Court does not consider whether Hamner was subjected to a sexually hostile work environment
while at HMS.
Page 38 of 43
C.H. Robinson Worldwide, Inc., 594 F.3d 798, 808 (11th Cir. 2010) (en banc) (quoting
Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999) (en banc)).
To establish the fourth element, the plaintiff must show that the conduct is
both objectively and subjectively “severe or pervasive.” Mendoza, 195 F.3d at 1246.
In evaluating the objective severity of the harassment, the court considers: “(1) the
frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is
physically threatening or humiliating, or a mere offensive utterance; and (4) whether
the conduct unreasonably interferes with the employee’s job performance.” Adams
v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1250–51 (11th Cir. 2015) (quoting Mendoza,
195 F.3d at 1246).
It is undisputed that Hamner belongs to a protected class. TCSS disputes that
she was subjected to unwelcome sexual harassment; and, that if she was, it did not
alter the terms and conditions of employment and create a discriminatorily abusive
No reasonable jury could find that the alleged harassment suffered by Hamner
was objectively severe or pervasive such that it altered the terms and conditions of
her employment. Hamner recounts two incidents in which Henson touched her hand
in a manner that made her uncomfortable and a third incident in which he pressed
his body up against her in an unwelcome and sexual manner. While it is clear Hamner
Page 39 of 43
found this behavior to be subjectively severe or pervasive, this is insufficient to
satisfy the objective standard. See, e.g., Dar Dar v. Assoc. Outdoor Club, Inc., 248 F.
App’x 82, 86 (11th Cir. 2007) (per curiam) (finding that “two instances of employees
touching [the plaintiff’s] buttocks . . . and two risqué comments” were insufficient
to establish a hostile work environment); Mendoza, 195 F.3d at 1247 (finding that a
supervisor rubbing his hip against the plaintiff “while touching her shoulder and
smiling”; following the plaintiff and staring at her “in a very obvious fashion”;
making sounds while staring at the plaintiff’s groin; and making a sexual comment
to the plaintiff were insufficient to establish “severe or pervasive conduct sufficient
to alter [the plaintiff’s] terms or conditions of employment”). Accordingly, TCSS’s
motion is due to be granted as to Hamner’s sexually hostile work environment claim.
B. Battery—Count VII
Hamner also brings a state law claim of battery against Henson. This Court,
like all federal courts, is a court of “limited jurisdiction.” Jackson-Platts v. Gen. Elec.
Cap. Corp., 727 F.3d 1127, 1134 (11th Cir. 2013). It is authorized to hear only those
cases falling within “one of three types of subject matter jurisdiction: (1) jurisdiction
under a specific statutory grant; (2) federal question jurisdiction pursuant to
28 U.S.C. § 1331; or (3) diversity jurisdiction pursuant to 28 U.S.C. § 1332(a).”
PTA-FLA, Inc. v. ZTE USA, Inc., 844 F.3d 1299, 1305 (11th Cir. 2016). A federal
Page 40 of 43
court with subject matter jurisdiction over a claim also has “supplemental
jurisdiction” over state law claims that are “so related to claims in the action within
such original jurisdiction that they form part of the same case or controversy under
Article III.” 28 U.S.C. § 1367(a). To be part of the same case or controversy, “[t]he
state and federal claims must derive from a common nucleus of operative fact.”
United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966). Exercising
supplemental jurisdiction is discretionary, and the court “may decline to exercise
supplemental jurisdiction over a claim [when] the district court has dismissed all
claims over which it has original jurisdiction.” Id. § 1367(c)(3); see also Raney v.
Allstate Ins. Co., 370 F.3d 1086, 1089 (11th Cir. 2004) (per curiam) (acknowledging
that district courts are “encouraged . . . to dismiss any remaining state law claims
when . . . the federal claims have been dismissed prior to trial”).
The only claim against Henson over which the Court has original jurisdiction
is Hamner’s claim of retaliation brought pursuant to § 1983. The Court determined
that summary judgment on that claim is due to be granted for Henson. Furthermore,
even if Hamner’s battery claim could be construed as deriving from a common
nucleus of operative fact as Hamner’s sexually hostile work environment claim
against TCSS, the Court also determined that summary judgment on Hamner’s
sexually hostile work environment claim is due to be granted. As there is no
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remaining claim over which the Court has original jurisdiction that is part of the
“same case or controversy” as the battery claim against Henson, the Court declines
to exercise supplemental jurisdiction over the state law battery claim. Accordingly,
Count VII is dismissed without prejudice, and the Individual Defendants’ motion is
due to be terminated as moot in part.
For the reasons stated above, TCCS’s Motion for Summary Judgment (doc.
84) is due to be granted in part as to Counts IV and V and denied in part as to Counts
I, III, and VI. The Individual Defendants’ Motion for Summary Judgment (doc. 86)
is due to be granted in part as to Count I and terminated as moot in part as to Count
VII. Count VII is due to be dismissed. TCSS’s Motion for Reconsideration (doc. 90)
is due to be denied. Defendants’ Motions to Strike Plaintiff’s Response Briefs (docs.
98 & 101) are due to be terminated as moot. Defendants’ Motions to Strike Plaintiff’s
Response Briefs (docs. 114 & 119) are due to be terminated as moot in part and denied
in part. TCSS’s Motion to Deem Statements of Facts Admitted (doc. 115) is due to
be denied. Defendants’ Motions to Strike Evidentiary Material (docs. 96, 97, & 103)
are due to be terminated as moot. Defendants’ Motions to Strike Evidentiary
Material (docs. 102, 117, 118, & 120) are due to be terminated as moot in part and
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denied in part. A separate order consistent with this opinion will be entered
DONE and ORDERED on February 17, 2021.
L. Scott Coogler
United States District Judge
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