Bolton v. Baldwin County Public Schools
Filing
51
MEMORANDUM OPINION AND ORDER entered. For the reasons set forth above, defendant's motion for summary judgment (Doc. 47) is GRANTED. The plaintiff is to have and take nothing from the defendant and her complaint, as last amended (Doc. 9), is DISMISSED WITH PREJUDICE. Signed by Magistrate Judge William E. Cassady on 9/19/2014. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BEVERLY J. BOLTON,
:
Plaintiff,
:
vs.
:
BALDWIN COUNTY PUBLIC
SCHOOLS,
CA 13-0548-C
:
1
:
Defendant.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on defendant’s motion for summary judgment
with attached brief and evidentiary materials (Doc. 47), plaintiff’s response with
attachments (Doc. 49), and the defendant’s reply brief (Doc. 50). The parties have
consented to the exercise of jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. §
636(c), for all proceedings in this Court. (Doc. 26 (“In accordance with provisions of 28
U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties in this case consent to have a United
States magistrate judge conduct any and all proceedings in this case, including the trial,
order the entry of a final judgment, and conduct all post-judgment proceedings.”); see
also Doc. 28 (order of reference).) Upon consideration of the foregoing pleadings, with
attachments, and all other relevant pleadings in this case, the Court concludes that
defendant’s motion for summary judgment (Doc. 47) is due to be GRANTED.
The real defendant in interest is the Baldwin County Board of Education. (Doc.
47, Affidavit of Jennifer Sinclair, at ¶ 1.)
1
FINDINGS OF FACT
On August 12 or 13, 2013, plaintiff was interviewed by the principal of Baldwin
County High School, John Cabaniss, and recommended for an open special education
teaching position at the school. (Compare Doc. 9, at 6 with Doc. 47, Sinclair aff., at ¶¶ 2 &
4 and Doc. 49, Exhibit 5 (August 12, 2013 email communications between the Human
Resources Department and the high school regarding paperwork Bolton needed to
complete
before
a
recommendation
to
hire
could
be
made).)
Cabaniss’s
recommendation of Bolton was entered into the Baldwin County Board of Education’s
“Human Resources data base system (CITRIX)[] on August 16, 2013[.]” (Doc. 47,
Sinclair aff., at ¶ 4.)
According to plaintiff, August 16, 2013 was the date of the “New Hire”
orientation/meeting she attended (see Doc. 9, at ¶ 8) and on that date she received
paperwork, including New-Hire Packet Information (Doc. 49, Exhibit 7) and an
enrollment form to enroll in the Teachers’ Retirement System of Alabama, which she
signed that very day (Doc. 49, Exhibit 8). The New-Hire Packet Information specifically
informed all new employees that “until the Board’s approval, employment is not
final[]” and that if the Board did not approve employment, the newly hired individual
would be “considered a substitute and compensated accordingly.” (Doc. 49, Exhibit 7.)
Even a “certification” form signed by Bolton on August 23, 2013 makes reference to
plaintiff as merely a “PROSPECTIVE EMPLOYEE[.]” (Doc. 49, Exhibit 6.) All of the
2
foregoing is consistent with Jennifer Sinclair’s affidavit testimony that “[a]ll certified
employees of the Baldwin County Board of Education, including certified special
Bolton worked at Baldwin County High School during the entire week of August
19, 2013. (See Doc. 49, Exhibit 18.)
2
2
education teachers, are not employed by the Baldwin County Board of Education until
the Board approves his/her hiring at a Board meeting open to the public.” (Doc. 47,
Exhibit 4, Sinclair aff., at ¶ 3.)
Following submission of Cabiniss’s recommendation of Bolton on August 16,
2013, the Human Resources Office of the Baldwin County Board of Education went
about the task of verifying plaintiff’s credentials. (Doc. 47, Exhibit 4, Sinclair aff., at ¶ 4.)
To this end, it was determined that although Bolton held a Florida teaching certificate,
“she did not hold an Alabama Professional Educator Certificate” and, therefore, “she
was eligible for Alabama Collaborative 6-12 Certification via reciprocity with Florida[.]”
(Compare id. at ¶ 5 with Doc. 47, Exhibit 1 to Sinclair aff., at 4.) Indeed, Angela
Middleton, with the Human Resources Office, sent an email of “high” importance to
Principal Cabaniss, on August 20, 2013, therein advising Cabaniss that plaintiff
3
appeared to be eligible for such a certification provided she submit “[a] copy of her
score report or registration confirmation for the NEXT ADMINISTRATION of Praxis II
#5354, Special Ed Core Knowledge & Applications[.]” (Id.) In addition, Middleton
4
On August 19, 2013, Human Resources Supervisor Tiffany Hollingsworth [Kiel]
emailed Cabaniss requesting that he have Bolton “resubmit her references on Teach in
Alabama[]” since all references who completed evaluations “on-line were her friends[]” and the
Human Resources Department needed “three professional references.” (Doc. 47, Exhibit 3 to
Sinclair aff.; see also Doc. 47, Affidavit of Tiffany Hollingsworth Kiel, at ¶¶ 4 & 5 (“I specifically
recall that, upon reviewing Ms. Bolton’s application, [] all of her references were listed as
‘friends.’ [] The application instruction specifically outlined that references must be professional
(previous supervisors or co-workers).”).) And while plaintiff has submitted the affidavits of
Harrietta Hall and Mary Rich, both of whom completed “on-line” references for Bolton and
who state in their affidavits that they “consider” Bolton a “friend” and a “past co-worker” (Doc.
49, Exhibit 2a, Affidavit of Harrietta Hall, at ¶¶ 6-7; id., Exhibit 2b, Affidavit of Mary Rich, at ¶¶
4-5), neither Hall nor Rich give sworn testimony that the “on-line” reference was completed in
her capacity as co-worker, as opposed to friend (see id.).
3
Middleton copied Bolton with all emails she sent to Cabaniss. (See id. at 4-5.) That
Bolton received copies of Middleton’s emails is clear inasmuch as the plaintiff emailed
Middleton on August 23, 2013, to advise that she wished to pursue her “certification in Special
Education working with the upper grade level[] at this time.” (Id. at 3.)
4
3
advised Cabaniss that she had discussed with Bolton—after the new employee
orientation meeting—the State’s requirement that all prospective employees who filed
applications prior to September 1, 2013 would be “required to complete basic skills
testing[;]” however, Middleton also advised Cabaniss that her department was in the
process of asking the State for an “update on this issue[.]” (Doc. 47, Exhibit 1 to Sinclair
aff., at 5.) The following morning—that is, on August 21, 2013 at 8:49 a.m.—Middleton
emailed Cabaniss and advised that the State was continuing to enforce the requirement
“of basic skills testing for OTH applications[;]” therefore, in addition to the Praxis II
#5354 score report or registration confirmation for the next administration of the test,
the Human Resources Office also needed a copy of Bolton’s “score report or registration
confirmation for the NEXT ADMINISTRATION of AECTP basic skills (reading, writing
& math)” in order to “complete the review of Ms. Bolton’s credentials[.]” (Id. at 4.)
5
On August 26, 2013, Angela Middleton addressed the following email to Bolton:
Thank you for faxing your test registration information.
The score reports for the July 13 administration of basic skills testing for
which you registered were mailed on August 10 so[] you should have
received your score report by now. Please submit a copy of your score
report.
The Praxis II document received was printed before your registration was
finalized. Please forward a copy of your admission ticket or registration
confirmation for the Praxis II.
Lastly, your email below indicates your desire to pursue the Collaborative
6-12 certification (which is required for your current assignment) but[] it
does not make clear that you do not wish to pursue any other area of
certification for which you may be eligible (e.g.[,] Elementary K-6 and
Collaborative K-6). Please state clearly your preferences regarding your
The State of Alabama Department of Education sent Bolton a letter dated August
22, 2013, advising her that “verification that you have met the requirements specified above
must be received in the Teacher Certification Office within 12 months of the date of this
letter.” (Doc. 49, Exhibit 1, at 2 (emphasis in original).)
5
4
current certificate application so that we may relay the information to the
State.
(Doc. 47, Exhibit 1 to Sinclair aff., at 3.) Instead of submitting her score report for the
July 13, 2013 administration of the basic skills testing, on August 28, 2013, Bolton
emailed information indicating that she had registered for the November 23, 2013 basic
skills testing. (Id. at 2.) Following receipt of this information from Ms. Bolton, Angela
6
Middleton emailed Jennifer Sinclair and asked whether the department would accept
Bolton’s registration for the November test date or whether Bolton needed to change
her registration date to the one being given on September 28, 2013. (Doc. 47, Exhibit 1 to
Sinclair aff., at 2.)
Upon receipt of this information, and because the Board of Education was set to
meet on August 29, 2013 to consider Bolton’s application, Sinclair contacted Cabaniss on
August 28, 2013, and informed him that “the Human Resources Office would be unable
to process Ms. Bolton’s recommendation and include it on a Board agenda until we had
proof of registration for the next administration of her tests in September.” (Doc. 47,
Sinclair aff., at ¶ 12; see also id. (“I asked Mr. Cabaniss to explain the situation to Ms.
Bolton and to notify her that she would not be included in a Board agenda until the
information was received.”).) That same day, Cabaniss contacted Sinclair and informed
her
that he had met with Ms. Bolton and that she had become upset and
irrational when he informed her of the need for her to resubmit
registration for the next administration of the AECTP. He said he was
concerned that he had made a mistake in recommending her. I responded
by telling him that I was concerned that she had not been able to complete
the required paperwork for her own employment and that, as a special
education teacher, the position for which she was being recommended,
Bolton was unable to sit for the basic skills testing on July 13, 2013. (See Doc. 47,
Exhibit 2 to Sinclair aff., at 1-2.)
6
5
our District would be dependent upon her to complete required
paperwork for her students.
(Id. at ¶ 13.) Therefore, Sinclair and Cabaniss agreed that the principal would not go
forward with Bolton’s recommendation. (Id.) While Cabaniss told Bolton of the decision
7
that her services “would no longer be needed at Baldwin County High School[,]”
Sinclair informed Angela Middleton that “Bolton’s recommendation should be
cancelled.” (Id.; see Exhibit 1 to Sinclair aff., at 1 (August 28, 2013 email—at 11:31 a.m.—
from Angela Middleton to Phyllis Yelding, Gail King, Mona Boyington, and Tiffany
Hollingsworth advising of the cancellation of Bolton’s recommendation).)
On August 29, 2013, Bolton called Sinclair and left a message “demanding a
letter stating why she had been fired.” (Doc. 47, Sinclair aff., at ¶ 14.) Bolton also copied
Sinclair with an email she had sent Cabaniss demanding the same information. (Id.) The
email sent to Cabaniss reads, in relevant part, as follows:
I would like to receive some type of paperwork stating why I was
let go, because what you told me in the office didn’t add up, and if it had
anything to do with something that someone from Escambia county has
told the district, they are in violation of court[] orders and Baldwin county
wrongfully terminate me without cause. . . . I was terminated wrongfully
because of hearsay from a third party who doesn’t suppose to talk about
the case unless they are involve[d]. I was hired as a Special Education
teacher, not a substitute. I wouldn’t have driven over [a] hundred miles a
day for substitute pay, therefore[,] I expect to get the right pay. Thank you
and I look forward to receiving the paperwork concerning why I was
fired, because you recommended me on the 16th of August as a full time
employee, not a substitute.
(Doc. 47, Exhibit 4 to Sinclair aff., at 1 & 1-2.) Sinclair ultimately responded to this email
by letter dated September 12, 2013 (Doc. 47, Sinclair aff., at ¶ 15), and while the Baldwin
Thus, as explained by Sinclair, Bolton could not be recommended to the Baldwin
County Board of Education to be hired as a certified teacher due to her “failure to properly
register for the tests . . . and . . . her failure to provide professional references as demanded from
any potential certified teacher[.]” (Id. at ¶ 17.)
7
6
County Public Schools Human Resources Director refused to “comment on the reasons
that [Bolton’s] name was not submitted to the Board for consideration,” she informed
Bolton “that the Board was not and is not aware of any proceedings elsewhere related”
to Bolton’s employment. (Doc. 47, Exhibit 5 to Sinclair aff.) In addition, Sinclair advised
Bolton that she “never attained he status of a regular employee as the Baldwin County
Board of Education never took action to hire” her. (Id.)
According to Bolton, she was treated differently from Carolina Smoak and
Melissa Miller, white employees. (See Doc. 9, at 7.) On July 10, 2013, Angela Middleton
8
sent an email of high importance to Cabaniss regarding Smoak requesting copies of
several score reports (i.e., an AECTP basic skills score report and a Praxis II #0061 or
#5061, Math Content Knowledge, score report) and completion of a form. (Doc. 47,
Exhibit 6 to Sinclair aff., at 1.) In response to a portion of the email request, Smoak
emailed Middleton—on July 15, 2013—a copy of her Admission Letter for AECTP basic
skills testing on August 22, 2013. (Id. at 2-3.) As for Melissa Miller, who was
recommended for hire as a math teacher, Middleton sent to Cabaniss an email of
“High” importance on August 13, 2013, listing Alabama’s reciprocity (OTH)
requirements and what the Human Resources Department needed from Miller to meet
those requirements. (See Doc. 47, Exhibit 6 to Sinclair aff., at 4.) And despite Miller’s
implicit request to be exempted from registering—on or before August 26, 2013—for
one of the required math tests, Middleton informed Miller on August 23, 2013, that the
Human Resources Department had to be in receipt of “both test registrations . . . no
According to Sinclair, Smoak and Miller “provided proper professional
references” as requested by her office. (Doc. 47, Sinclair aff., at ¶ 18; see also Doc. 47, Kiel aff., at
¶ 8 (“[B]oth Ms. Smoak and Ms. Miller provided proper professional references in their
applications. Ms. Smoak and Ms. Miller would not have been hired if they had not provided
proper professional references.”).)
8
7
later than August 27 in order to be able to get [her] name added to the August 29 special
agenda meeting.” (Id. at 7.)
9
CONCLUSIONS OF LAW
Summary judgment is proper “if the movant shows that there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106
S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (“The mere existence of some alleged factual
dispute between the parties will not defeat an otherwise properly supported motion for
summary judgment.”); Garczynski v. Bradshaw, 573 F.3d 1158, 1165 (11th Cir. 2009)
(“[S]ummary judgment is appropriate even if ‘some alleged factual dispute’ between the
parties remains, so long as there is ‘no genuine issue of material fact.’”).
The party seeking summary judgment has the initial responsibility of informing
the court of the basis for the motion and of establishing, based upon the discovery
instruments outlined in Rule 56(c), that there is no genuine issue of material fact and
that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett,
477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); see also Allen v. Board of
Public Educ. for Bibb County, 495 F.3d 1306, 1313 (11th Cir. 2007) (“The moving party
bears the initial burden of showing the court, by reference to materials on file, that there
are no genuine issues of material fact that should be decided at trial.”). Once this initial
demonstration is made, the “responsibility then devolves upon the non-movant[s] to
show the existence of a genuine issue . . . [of] material fact.” Fitzpatrick v. City of Atlanta,
2 F.3d 1112, 1116 (11th Cir. 1993); see also Allen, supra, 495 F.3d at 1314 (“‘When a
9
Miller registered to sit for both required math tests in October of 2013. (See id. at
5-6 & 8-9.)
8
moving party has discharged its burden, the non-moving party must then “go beyond
the pleadings,” and by its own affidavits, or by “depositions, answers to interrogatories,
and admissions on file,” designate specific facts showing that there is a genuine issue
for trial.’”); see Comer v. City of Palm Bay, Florida, 265 F.3d 1186, 1192 (11th Cir. 2001)
(“Once the moving party discharges its initial burden of showing that there is an
absence of evidence to support the non-moving party’s case, the non-moving party
must specify facts proving the existence of a genuine issue of material fact for trial
confirmed by affidavits, ‘”depositions, answers to interrogatories, and admissions on
file.”’”).
Forbidding reliance upon pleadings precludes a party from
“choos[ing] to wait until trial to develop claims or defenses relevant to the
summary judgment motion.” . . . This effectuates the purpose of summary
judgment which “‘is to pierce the pleadings and to assess the proof in
order to see whether there is a genuine need for trial.’” . . . Thus, “mere
general allegations which do not reveal detailed and precise facts” will not
prevent the award of summary judgment upon a court’s determination
that no genuine issue for trial exists.
Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 592 (11th Cir.), cert. denied sub nom.
Jones v. Resolution Trust Corp., 516 U.S. 817, 116 S.Ct. 74, 133 L.Ed.2d 33 (1995); see also
LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 835 (11th Cir. 1998) (“[The nonmoving
party] must raise ‘significant probative evidence’ that would be sufficient for a jury to
find for that party.”). In other words, there is no genuine issue for trial “[w]here the
record taken as a whole could not lead a rational trier of fact to find for the non-moving
party[.]” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct.
1348, 1356, 89 L.Ed.2d 538 (1986); see Comer, supra, 265 F.3d at 1192 (“Summary
judgment is required where the non-moving party’s response to a motion is merely ‘a
repetition of his conclusional allegations’ and is unsupported by evidence showing an
issue for trial.”).
9
In considering whether the defendant is entitled to summary judgment in this
case, the Court has viewed the facts in the light most favorable to the plaintiff. Comer,
supra, 265 F.3d at 1192 (“We view the evidence and all factual inferences raised by it in
the light most favorable to the non-moving party, and resolve all reasonable doubts
about the facts in favor of the non-moving party.”).
The requirement to view the facts in the nonmoving party’s favor
extends only to “genuine” disputes over material facts. A genuine dispute
requires more than “some metaphysical doubt as to the material facts.” A
“mere scintilla” of evidence is insufficient; the non-moving party must
produce substantial evidence in order to defeat a motion for summary
judgment.
Garczynski, supra, 573 F.3d at 1165 (internal citations omitted). In addition, “[t]here is no
burden upon the district court to distill every potential argument that could be made
based upon the materials before it on summary judgment.” Resolution Trust Corp., supra,
43 F.3d at 599. Accordingly, the Court limits its review to those arguments expressly
advanced by the parties.
Prior to addressing the specific claims raised by Bolton in her complaint, as last
amended, namely, race discrimination and retaliation under Title VII, 42 U.S.C. § 2000e,
et seq., and 42 U.S.C. § 1981 (Doc. 9, at 7-9), the Court digresses for a moment to
comment on the defendant’s “reading” of plaintiff’s response to its motion for summary
judgment (see Doc. 50, at 8-10). In its reply, the defendant has construed some of
plaintiff’s comments in her “Factual Background” section of her brief as “improperly”
alleging a “disparate impact claim[.]” (Id. at 8.) The undersigned cannot agree with the
defendant that Bolton is now attempting to raise a disparate impact claim of race
discrimination based upon certain comments inserted into the “Fact” section of her brief
in opposition inasmuch as she explicitly states in the “Legal Analysis” portion of her
brief that she predicates “liability under Title VII on disparate treatment and also claim
10
liability under Section 1981, which the legal elements of the claims are identical.” (Doc.
49, at 13.) Besides, a pro se plaintiff cannot assert new claims for relief at the summary
judgment stage of the proceedings. Compare, e.g., Gilmour v. Gates, McDonald and Co., 382
F.3d 1312, 1315 (11th Cir. 2004) (“Liberal pleading does not require that, at the summary
judgment stage, defendants must infer all possible claims that could arise out of facts
set forth in the complaint.”) with Lolley v. Louisiana Correctional Services, 2011 WL
4499331, *3 n. 4 (S.D. Ala. Sept. 9, 2011) (“The law in this Circuit is clear that while ‘a
federal court must liberally construe pro se pleadings, Albra v. Advan, Inc., 490 F.3d 826,
829 (11th Cir. 2007), such standards do ‘not afford Plaintiffs with an opportunity to raise
new claims at the summary judgment stage.’ Mortensen v. Mortgage Electronic
Registration Systems, Inc., 2010 U.S. LEXIS 135876 (11th Cir. 2011)[.]”), report and
recommendation adopted, 2011 WL 4499320 (S.D. Ala. Sept. 29, 2011), and Bethel v. City of
Mobile, Alabama, 2011 WL 1298130, *9 n.6 (S.D. Ala. Apr. 5, 2011) (“The law in this circuit
is clear that plaintiffs are not permitted to raise new claims in response to a defendant’s
motion for summary judgment.”). Therefore, the Court declines to follow defendant
down a rabbit hole of its own making.
A.
Disparate Treatment Claims Under Title VII and § 1981.
It is well
established that “[c]laims of race discrimination under 42 U.S.C. § 1981 are analyzed in
the same manner as claims brought under Title VII.” Coar v. Pemco Aeroplex, Inc., 372
Fed.Appx. 1, 3 (11th Cir. Feb. 25, 2010), citing Rice-Lamar v. City of Fort Lauderdale, 232
10
F.3d 836, 843 n.11 (11th Cir. 2000). Therefore, “[w]here, as here, an employee attempts to
prove discriminatory intent by circumstantial evidence, the claims are subject to the
10
“Unpublished opinions are not considered binding precedent, but they may be
cited as persuasive authority.” 11th Cir. R. 36-2.
11
burden shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973).” Stinson v. Public Service Tel. Co.,
486 Fed.Appx. 8, 9 (11th Cir. Aug. 2, 2012).
Under this framework, the plaintiff may establish a prima facie case of
disparate treatment by showing that [s]he was a qualified member of a
protected class and was subjected to an adverse employment action in
contrast with similarly situated employees outside the protected class. If a
prima facie case is established, the burden shifts to the employer to
articulate a legitimate, nondiscriminatory reason for its actions. Once the
employer satisfies its burden, the burden shifts back to the plaintiff to
offer evidence that the alleged reason of the employer is a pretext for
illegal discrimination.
A comparator is an employee outside of the plaintiff’s protected
class who is similarly situated to the plaintiff in all relevant respects. This
prevents courts from second-guessing employers’ reasonable decisions
and confusing apples with oranges.
Coar, supra, 372 Fed.Appx. at *3 (internal quotation marks, citations, and brackets
omitted; brackets added); see also Burke-Fowler v. Orange County, Florida, 447 F.3d 1319,
1323 (11th Cir. 2006) (“To establish a prima facie case for disparate treatment in a race
discrimination case, the plaintiff must show that: (1) she is a member of a protected
class; (2) she was subjected to an adverse employment action; (3) her employer treated
similarly situated employees outside of her protected class more favorably than she was
treated; and (4) she was qualified to do the job. If the plaintiff satisfies these elements,
then the defendant must show a legitimate, non-discriminatory reason for its
employment action. If it does so, then the plaintiff must prove that the reason provided
by the defendant is a pretext for unlawful discrimination.” (internal citations omitted)).
There is no dispute that Bolton meets the first and second elements of her prima
facie case of disparate treatment race discrimination under Title VII and § 1981. (See
Doc. 47, Brief in Support of Motion for Summary Judgment, at 13 (“It is clear that the
Plaintiff is a member of a protected class and that, in a sense, adverse action was taken
12
against the Plaintiff.”).) Although defendant contends that plaintiff cannot establish the
third or fourth elements of her prima facie case (see id.), the focus of the Court is on the
third element inasmuch as plaintiff has offered no credible evidence that the defendant
treated Smoak and Miller more favorably than she was treated. Indeed, what evidence
11
the undersigned has relative to Smoak and Miller indicates that the Human Resources
Department of the Baldwin County Board of Education treated these applicants for
teaching positions at Baldwin County High School in the same manner as Bolton was
treated, Angela Middleton emailing Principal Cabaniss about certain information
12
needed from these two women (e.g., score reports or evidence of registering for
required testing, etc.) before they could be recommended for hiring as fulltime
teachers. In addition, the Department of Human Resources also required that Smoak
13
and Miller have the professional references requested of plaintiff before sending their
names to the Baldwin County Board of Education for hiring on a fulltime basis.
(Compare Doc. 47, Sinclair aff., at ¶ 18 with Doc. 47, Kiel aff., at ¶ 8 (“Ms. Smoak and Ms.
The defendant contends that plaintiff has not shown that she was qualified for
the position of special education teacher during the application process inasmuch as her failure
to properly register for the next administration of the PRAXIS II and AECTP and her failure to
submit proper professional references meant that she could not be recommended to the Board
for hiring in such position. (See id. at 13.) The Court does not necessarily disagree with the
defendant’s argument in this regard; instead, the undersigned has simply determined that it is
better to focus its energy elsewhere.
11
In her response in opposition, plaintiff makes reference to some unidentified
individual who was eventually hired to replace her. (Doc. 49, at 13.) However, she offers
absolutely no evidence showing that this individual was given preferential treatment. (See Doc.
49.)
12
As defendant points out, Miller and Smoak, like Bolton, received substitute
teacher pay prior to being hired as fulltime teachers. (Compare Doc. 47, Sinclair aff., at ¶¶ 3 & 18
(“It is the standard practice of the Board and its schools to hire an employee on a substitute
teacher basis prior to Board approval during a meeting open to the public. . . . [B]oth Ms. Smoak
and Ms. Miller were paid as substitute teachers prior to being hired by the Board at a Board
meeting.”) with Doc. 49, Exhibit 7 (“Should the Board NOT approve employment, the
individual will be considered a substitute and compensated accordingly.”).)
13
13
Miller would not have been hired if they had not provided proper professional
references.”).) Because Bolton has provided no evidence that Smoak or Miller were
recommended to the Baldwin County Board of Education for hiring on a fulltime basis
despite lacking professional references and test scores or evidence of registering for the
next administration of the required test(s), she is unable to establish a prima facie case
of race discrimination under Title VII or § 1981. Moreover, the defendant’s stated
reasons for not hiring Bolton as a fulltime teacher—that is, her failure to register for
testing on the date of the next administration of the relevant test and her failure to
provide professional references—are legitimate and nondiscriminatory, and Bolton has
produced no evidence establishing that these reasons were a pretext for unlawful race
discrimination. Indeed, plaintiff’s statement in her brief that she “she referred to the
references as friends, but they are professional educators that the Plaintiff has worked
with[]” (Doc. 49, at 14) establishes the contrary, namely, that the “failure to provide
professional references” was not mere pretext for unlawful race discrimination. The
plaintiff would have to have some proof that the defendant knew when it cancelled the
recommendation for her hiring as a fulltime teacher that the persons Bolton admits she
referred to as friends were, in fact, professional educators and were references for her in
that capacity; however, the plaintiff has provided no evidence that the defendant was
aware of the true capacity of plaintiff’s listed references. (See Doc. 49, Exhibits 2a & 2b,
Hall & Rich Affidavits (neither affiant gives sworn testimony that the on-line reference
was specifically completed in her capacity as past co-worker).) Moreover, plaintiff has
not established pretext with respect to the “test score/registration for relevant test”
reason by referring to the contents of a letter she received from the State Department of
Education providing that it had to receive “verification” within one-year from the date
of the letter that she met Alabama’s certification requirements (compare Doc. 49, at 14
14
with Doc. 49, Exhibit 1, at 2), inasmuch as such “verification” does not do away with the
defendant’s requirement that the plaintiff have a score report or registration
confirmation for the “NEXT ADMINISTRATION” of the tests to be recommended for
hire on a fulltime basis as a special education teacher (see Doc. 47, Exhibit 1 to Sinclair
aff., at 4).
Based upon the foregoing, defendant is entitled to summary judgment in its
favor on plaintiff’s (Title VII and § 1981) claims of disparate treatment.
B.
Retaliation Under Title VII and § 1981. “A plaintiff establishes a prima
facie case of retaliation by showing that: (1) she ‘engaged in statutorily protected
activity’; (2) she ‘suffered a materially adverse action’; and (3) ‘there was a causal
connection between the protected activity and the adverse action.’” Chapter 7 Trustee v.
Gate Gourmet, Inc., 683 F.3d 1249, 1258 (11th Cir. 2012) (citations omitted); see also
14
Stinson, supra, 486 Fed.Appx. at 10 (“’A prima facie case of retaliation under Title VII
requires the plaintiff to show that: (1) she engaged in an activity protected under Title
VII; (2) she suffered an adverse employment action; and (3) there was a causal
connection between the protected activity and the adverse employment action.’”).
Arguably, given Bolton’s wholesale failure to respond to defendant’s legal argument
that it did not retaliate against plaintiff (compare Doc. 47, Brief in Support of Motion for
Summary Judgment, at 15-19 (defendant’s legal argument) with Doc. 49, at 13-15
(plaintiff addresses solely her claims of disparate treatment under Title VII and § 1981)),
the defendant is entitled to judgment in its favor on plaintiff’s retaliation claim.
Nevertheless, even looking at the “merits” of such claim, it remains clear that the
“Retaliation against an employee who engages in statutorily protected activity is
barred under both Title VII and § 1981.” Id. at 1257-1258.
14
15
defendant is entitled to summary judgment on plaintiff’s retaliation claim. This is
because Bolton did not engage in statutorily protected activity in this case.
“Under Title VII, an employee has engaged in protected activity if she has: (1)
opposed an unlawful employment practice, or (2) made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under Title VII’s
retaliation provision.” Smith v. City of Fort Pierce, Florida, 565 Fed.Appx. 774, 777 (11th
Cir. Apr. 30, 2014) (internal quotation marks omitted), citing EEOC v. Total Sys. Servs.,
Inc., 221 F.3d 1171, 1174 (11th Cir. 2000) and 42 U.S.C. § 2000e-3(a). All of the varied and
conclusory allegations contained in plaintiff’s complaint as last amended (see Doc. 9, at
8-9 (plaintiff’s allegations about hearsay from another county, substitute pay, breaching
an agreement to hire her versus firing her for not signing up to take a test by a date
certain, and failing to give her the same opportunities as Smoak and Miller)) are bereft
15
of any relationship with opposition to an unlawful employment practice engaged in by
the Baldwin County Board of Education or to the making of a charge under Title VII’s
retaliation provision. See, e.g., Satchel v. School Bd. Of Hillsborough County, 251 Fed.Appx.
626, 628 (11th Cir. Oct. 16, 2007) (“The activities cited in Satchel’s complaint, including
filing a union grievance, filing an informal complaint of harassment by a co-worker,
and writing letters to the editor of local newspapers, do not constitute the type of
protected activity contemplated by Title VII because Satchel failed to allege that the
complaints included in those documents had any relationship to race or otherwise
indicate that the School Board was engaged in unlawful employment practices.”), cert.
denied, 552 U.S. 1315, 128 S.Ct. 1875, 170 L.Ed.2d 752 (2008). In other words, plaintiff did
All of plaintiff’s allegations focus on “activities” by the defendant, not on any
activities in which she engaged.
15
16
not oppose an unlawful employment practice engaged in by the Baldwin County Board
of Education at the time her recommendation for fulltime employment was cancelled
[and/or she was terminated], nor had she made a charge under Title VII’s retaliation
provision at that time. Compare id. with Bourne v. School Bd. of Broward County, 508
Fed.Appx. 907, 910-911 (11th Cir. Feb. 1, 2013) (“Under Title VII and the FCRA there are
two categories of protected activity: those activities that fit under the ‘opposition clause’
of 42 U.S.C. § 2000e-3(a) and those activities that fit under the ‘participation clause.’ . . .
The district court focused on whether Bourne’s activity fit under the ‘opposition clause’
and determined that it did not. Bourne does not challenge this determination. And our
review of the record supports the district court’s determination that her activities were
not protected on these grounds. Bourne argues that the district court erred by failing to
consider whether her actions constituted ‘protected activity’ under the ‘participation
clause’ because her actions properly fit in that category. The participation clause
protects an employee who ‘has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing’ under the relevant section. . . .
Bourne’s argument fails. Contrary to Bourne’s argument, she cannot find refuge under
the ‘participation clause’ on the grounds that she filed a complaint with the School
Board’s internal EEO office prior to submitting applications for the vacant positions.
This Court has explained that the participation clause ‘protects proceedings and
activities which occur in conjunction with or after the filing of a formal charge with the
EEOC; it does not include participating in an employer’s internal, in-house
investigation, conducted apart from a formal charge with the EEOC.’ EEOC v. Total Sys.
Servs., Inc., 221 F.3d 1171, 1174 (11th Cir. 2000) . . . . At the time Bourne applied for the
vacant positions, she had not yet filed a charge with the EEOC or otherwise instigated
proceedings under the statute. Therefore, her conduct does not come under the
17
‘participation clause.’”), cert. denied,
U.S.
, 133 S.Ct. 2836, 186 L.Ed.2d 893 (2013).
Because Bolton did not engage in statutorily protected activity, she has failed to
establish a prima facie case of retaliation under Title VII or § 1981. Accordingly,
16
summary judgment is properly granted in defendant’s favor on plaintiff’s retaliation
claim under § 1981 and Title VII.
CONCLUSION
For the reasons set forth above, defendant’s motion for summary judgment (Doc.
47) is GRANTED. The plaintiff is to have and take nothing from the defendant and her
complaint, as last amended (Doc. 9), is DISMISSED WITH PREJUDICE.
DONE and ORDERED this 19th day of September, 2014.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
The undersigned recognizes, of course, that Bolton filed a complaint with the
EEOC (see, e.g., Doc. 9, Attached Dismissal and Notice of Rights); however, this complaint was
filed after cancellation of the recommendation that she be hired on a fulltime basis as a special
education teacher (compare id. with Doc. 9, ¶¶ 13-15). And while the filing of such complaint is
protected activity, Bolton “did not engage in this activity while she was still employed by the
School Board and, thus, [she also] has failed to establish a causal connection between the
protected activity and her termination from employment [or the school board’s failure to hire
her on a fulltime basis], which is necessary to sustain a claim of retaliation.” Satchel, supra, 251
Fed.Appx. at 628.
16
18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?