Mims et al v. Monroe County Board of Education

Filing 58

ORDER re: 27 Motion for Summary Judgment. Mims Section 1981 claims for hostile work environment, race discrimination, and retaliation are DISMISSED as a matter of law; and Mims Section 1983 claim for equal protection retaliation is DISMISSED a s a matter of law. Additionally, it is ORDERED that Defendants Motion for Summary Judgment (Docs. 27, 40) is GRANTED as to Mims Title VII retaliation and discriminatory transfer claims; and GRANTED as to Mims Section 1983 discriminatory transfer and hostile work environment claims.. Signed by Judge Kristi K. DuBose on 8/12/2015. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LILLIE MIMS, et al.,
Plaintiffs,
v.
MONROE COUNTY BOARD OF
EDUCATION, et al.,
Defendants.

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CIVIL ACTION 13-00643-KD-M

ORDER
This matter is before the Court on Defendants’ Motion for Summary Judgment as to
Plaintiff Mims (Docs. 27, 40), Mims’ Response (Doc. 54) and Defendants’ Reply (Doc. 56).
I.

Findings of Fact1
Plaintiff Lillie Mims (Mims), an African-American female, was employed in 2014 by the

Monroe County Board of Education (School Board) at J.F. Shields High School (Shields).
In 2011, Kathy Murphy (Murphy) became Superintendent, serving as the Chief Executive
Officer and Secretary of the School Board, overseeing the day-to-day operations of the school
system and making recommendations to the School Board concerning various matters including
personnel decisions. (Docs. 32-2 (Aff. Murphy); 39-10). According to Murphy, her goals and
plans for the school system included continuously planning for school and district-wide
improvement and to have well-prepared, capable and dedicated faculty and staff throughout the
district. (Id.) Two (2) schools were closed and many employees were shuffled to provide,
according to Murphy, a more effective educational experience for students. (Id.)
1

At the summary judgment stage, the facts are taken in the light most favorable to the non-movant. Tipton
v. Bergrohr GMBH–Siegen, 965 F.2d 994, 998-999 (11th Cir. 1992). The “facts, as accepted at the summary
judgment stage of the proceedings, may not be the actual facts of the case.” Priester v. City of Riviera Beach, 208
F.3d 919, 925 n. 3 (11th Cir. 2000).

1

On March 30, 2012, Murphy held a meeting with directors, some principals, assistant
principals and various central office personnel, to discuss ideas for realigning personnel based on
the needs of the school system and budgetary restraints. (Id.) Mims attended the meeting and
was allowed to give input on the decisions that were to be made. (Doc. 39-10). As part of her
plan, Murphy wished to improve the quality of education for the students assigned to the Monroe
County C.P. Carmichael Alternative School (Alternative School) by providing meaningful
instruction so when the students retuned to the regular classroom setting, they would be current
on their class work. (Docs. 32-2 (Aff. Murphy); 39-10). Additionally, as of the date of this
meeting, the school system had nine (9) assistant principals but had only “earned” 4.5 principals;
thus, one of the goals was to eliminate and shift assistant principals. (Doc. 39-10). Of the nine
(9) assistant principals, four (4) were non-tenured and their contracts were not renewed. (Id.)
Mims was tenured in one-half of an assistant principal’s position (one-half of her duties were
related to the position of assistant principal); she also served as a counselor. (Id.)
In May 2012, Murphy informed Mims that she would recommend her transfer – from the
position of assistant principal/counselor at Shields to assistant principal/counselor at the
Alternative School – to the School Board. (Doc. 39-10). In response, Mims notified Murphy
that she would be contesting the transfer. Mims’ attorney later made several requests to Murphy
regarding the transfer, including a request for clarification of Mims’ duties, responsibilities and
job title. (Doc. 35-5). Murphy agreed with some of these requests and responded via letter to
counsel on June 6, 2012, and Mims consented to the transfer.

(Doc. 35-6; Doc. 39-10).

Thereafter, on June 7, 2012 Murphy recommended Mims’ transfer to the School Board, which
voted and approved same. (Doc. 35-7 at 3-4). None of the individual members of the School
Board believed or had reason to believe the transfer recommendation was based on race. (Docs.
2

28-1 to 28-5 (Affs. Powell, Dean, Jordan, Black, Lett)). With the transfer, Mims received no cut
in pay or position. (Doc. 39-10 at 4).
Murphy delineated the reasons Mims was transferred: 1) having an a counselor at the
school would provide a much needed component at a school site that served students who were
already having troubles, whether academic, personal or both; 2) Murphy received several
community and parent requests that Mims not remain at Shields; and 3) Mims’ transfer was
based upon the needs of the school district as a whole and the specific needs at the Alternative
School. (Doc. 39-10).
Mims initiated this litigation on December 30, 2013, suing the School Board, Murphy,
and individual members of the School Board,2 alleging Title VII and Section 1981/1983 race
discrimination (discriminatory transfer), retaliation, and hostile work environment. (Doc. 18 at
1-2, 5-8). Mims’ Complaint alleges four (4) counts for: 1) First Cause of Action -- “Employment
Discrimination: Title VII, Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq”; 2)
Second Cause of Action -- “Employment Discrimination: Retaliation”; 3) Third Cause of Action
– “Equal Protection, 14th Amendment as enforced by Sections 1981”; and 4) Fourth Cause of
Action -- “Equal Protection, 14th Amendment as enforced by Section 1983 Claim.” (Doc. 18 at
9-12). Mims’ allegations consist of the following:3
….Plaintiff avers that she has been the victim of unlawful employment discrimination,
including, but not limited to, her transfer from J.F. Shields High school to C.P.
Carmichael Alternative School…Plaintiff Mims was an assistant principal at J.F. Shields.
Despite the representation that Plaintiff Mims was being transferred to the same position
2

Suing Murphy in her individual capacity for Section 1981 and 1983 violations; and suing Tony Powell,
Barbara Dean, Martha Jordan, Patricia M. Black and Richard R. Lett, members of the School Board, in their
individual capacities for Section 1981 and 1983 violations. (Doc. 18 at 3).
3

While the Complaint suggests that Mims endeavors to “adopt and incorporate” all prior paragraphs and
factual allegations (apparently including those of co-plaintiff Turner), she cannot assume Turner’s specific
paragraphs/allegations as her own because such “me too” evidence is not permissible in this case. Moreover, the
practice of “adopting and incorporating by reference” is disfavored in this Court.

3

of assistant principal and counselor, it is not true as her duties and responsibilities were
different….she has been severely degraded in that the Alternative School is for students
with disciplinary and behavioral transgressions who have been removed from their
regular student body. At the Alternative School the plaintiff avers that she was relegated
to the rank of a teacher, assigned teaching duties and responsibilities as opposed to
administration. The principal assigned to the Alternative school is Larry Woolfolk and
the plaintiffs are the designated teachers. Mims avers that the defendants MCBOE and its
various members acted on the recommendation of the superintendent, whose actions were
punitive, discriminatory and retaliatory against the plaintiffs. Unlike other assistant
principals in Monroe County, plaintiff avers that she was not allowed to have a key to the
school after her transfer to C.P. Carmichael Alternative School. Not having a key during
the month of August, 2012, thus she had to rely on the schedule of the principal’s
secretary in determining when she could enter and leave the building. The
Superintendent, defendant Dr. Murphy, directly questioned plaintiff Mims for not
attending a couple of off campus meetings, even though she knew that the plaintiff could
not leave the Alternative School building unlocked since she was the only one there at the
time. This is just one example of how…the defendants have made it purposely more
difficult for her [since] the filing of the original charge of discrimination.
On August 6, 2012, Plaintiff Mims alleges that Superintendent Murphy denied her the
position of grant director for the 21st Century Community Learning Center. This
happened even though Mr. Larry Turner, principal of J.F. Shields High School,
recommended her retention as director for the grant, especially since the grant was
originally written by the plaintiff….the adverse employment actions of Dr. Murphy and
the Monroe County Board of Education in dismissing her as grant director for the 21st
Century Community Learning Center are consistent with the pattern and practice of racial
animus, discriminatory conduct and hostile work environment she has been subjected to.
The Defendants have continued to make every effort to discredit and embarrass the
plaintiffs amongst their peers, removing them from any position of actual responsibility
and administrative duties relative to their placement at…Alternative School.
… even though on paper her job title is that of assistant principal and counselor, she has
been demoted and relegated to simply a teacher of unruly students who have been
removed from their student body for disciplinary reasons and placed in Alternative
School. Her responsibilities have been severely degraded as she is compelled to
accomplish job duties and responsibilities normally assigned to only teachers. These
duties are thrust upon her as a direct and proximate cause of her having filed the charge
of discrimination with the EEOC and are meant to punish and demean her and discredit
her reputation in front of her peers. Plaintiff shows the court that on August 8, 2012, Amy
McCrory, Director of Curriculum and Instruction, confronted her about a conference and
informed her that she was required to come back to the afternoon session of a workshop.
The plaintiff had already attended the morning session designed for administrators, but
was told she had to go back to the afternoon session, (after she had left), even though[]
that session was meant solely for teachers. Indeed, the plaintiff avers that she could not
have attended the afternoon session because she was the only one at the Alternative
4

School at the time and would not have been able to have left without leaving the building
unlocked. The Alternative School is a staffed by what can be best described as a skeletal
personnel crew. Nonetheless, the plaintiff attended the morning workshop after seeing an
email from Mrs. McCrory, specifically informing them that counselors would find the
morning information helpful, and that they could slip out of the workshop after that
session. Notably, Sandy Bell, a white counselor, was never questioned about her lack of
attendance to the afternoon session. On another instance, specifically August 16, 2012,
Dr. Murphy questioned the plaintiff about not attending the Renaissance Learning
Training workshop on August 13-14, 2012. The plaintiff was the only assistant principal
and/or counselor required to attend that workshop in the entire county. The workshop was
designed for teachers using the Renaissance Learning program. Dr. Murphy confronted
the plaintiff about her lack of attendance at the workshop even though she had signed the
plaintiff’s sick leave form for those days prior to the commencement of the workshop….
(Doc. 18 at 5-8).
II.

Standard of Review
“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED.
R. CIV. P. 56(a) (Dec. 2010). Rule 56(c) provides as follows:
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party
may object that the material cited to support or dispute a fact cannot be presented
in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it
may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or
oppose a motion must be made on personal knowledge, set out facts that would be
5

admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.
FED.R.CIV.P. Rule 56(c) (Dec. 2010). The party seeking summary judgment bears the “initial
responsibility of informing the district court of the basis for its motion, and identifying those
portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue
of material fact.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the nonmoving party fails to make “a
sufficient showing on an essential element of her case with respect to which she has the burden
of proof,” the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. “In
reviewing whether the nonmoving party has met its burden, the court must stop short of
weighing the evidence and making credibility determinations of the truth of the matter. Instead,
the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in
his favor.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998-999 (11th Cir. 1992) (internal
citations and quotations omitted).
III.

Conclusions of Law
At the outset, Mims has failed to provide specific citations to the evidence to support her

claims, despite the Court’s prior instructions. (Doc. 49). Instead, Mims cites evidence generally,
without any specificity as to that upon which she relies (e.g., “Murphy’s Depo; Board Members
deposition: Dean, p. ; Lett, p. Powell, p.[,]” “See her EEOC Exhibits, Affidavits and excerpts of
Deposition testimony of how she was treated different…”). (Doc. 54 at 2, 11). In this sense,
Mims wholly fails to discuss (and show support for) how she was discriminated against. Instead
she simply points to a series of exhibits in general and then directs the Court to discover the
6

evidence for her. A party may not, by the simple dumping of a mass amount of evidentiary
material into the record, shift to the Court the burden of identifying evidence supporting its
position. The same holds true for Defendants who, while submitting 101 exhibits comprising
approximately 1,270 pages (without delineation between Turner and Mims) (Docs. 28-39, 44),
only cite to 18 exhibits for Mims. Accordingly, the Court’s review is limited to those portions of
the submitted materials to which the parties have expressly drawn the Court’s attention with
specific citation.4 The Court has thus not considered those exhibits referenced generally (without
any page or paragraph citation), as it is not the undersigned’s task to use its resources to ferret
out evidentiary support for the parties on summary judgment. 5
A. Section 1981 claims: Third Cause of Action - “Equal Protection, 14th
Amendment as enforced by Section[] 1981”6
As alleged, defendants Murphy and the individual board members are state actors insofar
as they are government officials “acting under color of [state] law.” “Section 1981 does not
provide a cause of action against state actors; instead, claims against state actors or [sic]
allegations of § 1981 violations must be brought pursuant to § 1983.” Baker v. Birmingham Bd.
of Ed., 531 F.3d 1336, 1337 (11th Cir. 2008) (citing Butts v. County of Volusia, 222 F.3d 891,

4

As illustration, for Mims this means that her evidence considered on summary judgment consists of two
(2) paragraphs from her affidavit, a paragraph from Larry Turner’s Affidavit, and approximately 30 combined pages
from her own depositions and the depositions of individual board members Tony Powell, Barbara Dean and Patricia
M. Black, and Superintendent Kathy Murphy.
5

“There is no burden upon the…court to distill every potential argument that could be made based upon
the materials before it on summary judgment.” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.
1995). It is not the duty of the Court to scour the record to find specific references and places the parties may deem
relevant. “Judges are not like pigs, hunting for truffles buried in briefs.” United States v. Dunkel, 927 F.2d 955, 956
(7th Cir. 1991). See also e.g., Mathis v. Kerry, 2014 WL 793996, *1 (M.D. Ga. Feb. 27, 2014) (that “judges have no
duty to scour the file in search of evidence is an obvious corollary to the requirement that parties specifically
identify the portions of the…file which support their assertions regarding whether genuine issues remain for trial[]”).
6

While Mims references Section 1983 within this cause of action, such appears to be an error as this claim
is raised under Section 1981 and mirrors the Section 1981 claim raised by Turner (Doc. 18 at 13).

7

892-894 (11th Cir. 2000)). See, e.g., Cotton v. Polk Cty. Bd. of Cty. Com’rs, 2015 WL 1020634,
*1 (M.D. Fla. Mar. 9, 2015); Betts v. Conecuh Cty. Bd. of Ed., 2014 WL 7411670, *5-7 (S.D.
Ala. Dec. 30, 2014); Hamilton v. Montgomery Cty. Bd. of Ed., 122 F.Supp.2d 1273, 1279 (M.D.
Ala. 2000). As such, the Court merges Turner’s Section 1981 count into her Section 1983 count,
DISMISSING the “Third Federal Cause of Action” (Doc. 18 at 11) against these defendants, as
a matter of law. Jett v. Dallas Ind. Sch. Dist., 491 U.S. 701, 733 (1989) (Section 1983 “provides
the exclusive federal damages remedy for the violation of the rights guaranteed by § 1981 when
the claim is pressed against a state actor[]”)); McMillan v. Fulton Cty., Ga., 352 Fed. Appx. 329,
330 at n. 1 (11th Cir. 2009) (there is no liability under section 1981 in cases involving state actors
as such claims merge into the Section 1983 claims).
B. Section 1983 claims: Fourth Cause of Action – “Equal Protection, 14th
Amendment” as enforced by Section 1983
In the Complaint Mims asserts Section 1983 claims for “Equal Protection, 14th
Amendment” against Murphy and the board members in their individual capacities, for hostile
work environment, retaliation, and race discrimination (discriminatory transfer). (Doc. 18 at 12).
While inartfully pled, it appears that Turner alleges that these defendants violated her
equal protection rights because she was transferred as part of a “custom and policy” on the part
of Murphy and the individual board members, of transferring African American employees to
the Alternative School but not Caucasian employees. (Id. at 12 at ¶26).
Section 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of
any State or Territory or the District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress ....
8

To establish a Section 1983 claim, Mims must show a violation of a right secured by the
Constitution of the United States, and that the deprivation of that right was committed by a
person acting under color of state law. Cummings v. DeKalb Cty,, 24 F.3d 1349 (11th Cir.
1994). Section 1983 does not provide substantive rights, but merely “a method for vindicating
federal rights elsewhere conferred.” Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979).
1.

Hostile Work Environment7

Mims alleges Section 1983 hostile work environment against Murphy and the board
members in their individual capacities, per the “Fourteenth Amendment” and “equal protection
of the law.” (Doc. 18 at 1-2, 12). Mims’ claim is rooted in the following purported acts:
•
•

•
•
•

She was transferred and demoted to the Alternative School and was thus “degraded” as
she was relegated to teacher duties/responsibilities rather than administrative
Unlike other assistant principals she was not allowed by the defendants to have a key to
the school after her transfer which caused her to miss off campus meetings, “purposely”
making it “more difficult for her”
August 6, 2012, Murphy denied her the 21st Century Community Learning Center grant
director position even though Shields principal Larry Turner recommended her
defendants discredit and embarrass Mims among her peers, removing her from any
position of actual responsibility and administrative duties
August 8, 2012, Amy McCrory, Director of Curriculum and Instruction, confronted her
about a conference and informed her that she was required to attend. However, Sandy
Bell, a white counselor, was never questioned about her lack of attendance
7

With regard to Mims’ hostile work environment claim, this is not a class action and the Complaint does
not allege “pattern and practice” for her allegations (despite Defendants briefing of this issue on summary judgment).
EEOC v. Joe’s Stonecrab, Inc., 220 F.3d 1263, 1286-1287 (11th Cir. 2000) (distinguishing pattern and practice
claims from others, suggesting such claims may only be brought by the EEOC or a class of private plaintiffs).
Moreover, Mims cannot rely upon and/or base her hostile work environment claim on any evidence of the
other co-plaintiff’s experiences. See, e.g., Brown v. Berg Spiral Pipe Corp., 2011 WL 3610646, *14 (S.D. Ala. Aug.
17, 2011). Support for Mims’ discrimination case can only be based on evidence regarding her specific experiences
or that which she became aware of while employed. This is because “[t]o rely on the evidence, each [plaintiff] must
show that he was aware of those incidents at the relevant time he alleges the hostile work environment.” See, e.g.,
Melton v. National Dairy, LLC, 705 F.Supp.2d 1303, 1342 (M.D. Ala. 2010) (citing Edwards Wallace Comm.
College, 49 F.3d 1517, 1522 (11th Cir. 1995)) (emphasis in original). See also e.g., Head v. Pitts Enterp., Inc., 2010
WL 2773376, *8 (M.D. Ala. Jul. 14, 2010); McKenzie v. Citation Corp., LLC, 2007 WL 1424555, *13 (S.D. Ala.
May 11, 2007). Courts in the Eleventh Circuit may consider statements not directed at a plaintiff and even hearsay
statements, so long as the plaintiff was aware of the statements at the time he was employed. See, e.g., Yeomans v.
Forster and Howell, Inc., 2010 WL 3716394, *5-6 (M.D. Ala. Sept. 10, 2010).

9

•

August 16, 2012, Murphy questioned Mims about not attending the Renaissance
Learning Training workshop on August 13-14, 2012, even though she had signed Mims’
sick leave form for those days prior to the commencement of the workshop.

(Doc. 18 at 5-7).
Racial harassment is actionable where the conduct is sufficiently severe or pervasive to
alter the conditions of employment and create an abusive working environment. Freeman v. City
of Riverdale, 330 Fed. Appx. 863, 865 (11th Cir. 2009). To establish a prima facie case of hostile
work environment and/or racial harassment, the plaintiff must prove that: 1) he belongs to a
protected group; 2) he has been subject to unwelcome harassment; 3) the harassment was based
on a protected characteristic of the employee (such as race); 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) the employer is responsible for such environment under a
theory of vicarious or direct liability. See, e.g., Reeves v. DSI Sec. Servs., Inc., 395 Fed. Appx.
544, 545–546 (11th Cir. 2010); McCann v. Tillman, 526 F .3d 1370, 1378 (11th Cir. 2008); Miller
v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002); Mendoza v. Borden, Inc.,
195 F.3d 1238, 1245 (11th Cir. 1999). To be actionable as severe or pervasive, harassment “must
result in both an environment that a reasonable person would find hostile or abusive and an
environment that the victim subjectively perceive[s]...to be abusive.” Miller, 277 F.3d at 1276
(internal citation and quotation marks omitted). In other words, the severe or pervasive element
has an objective and subjective component. McCann, 526 F.3d at 1378. To determine objective
severity, courts look at the totality of the circumstances and consider: 1) the frequency of the
discriminatory 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 an employee's job performance. Reeves, 395 Fed. Appx. at 546.
10

See also Faragher v. City of Boca Raton, 524 U.S. 775, 787-788 (1998); Allen v. Tyson Foods,
121 F.3d 642, 647 (11th Cir. 1997) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).
“The conduct is considered cumulatively instead of in isolation.” Reeves, 395 Fed. Appx. at 546.
As to the first element, the parties do not dispute that Mims belongs to a protected group
– African American. As to the second element, given Mims’ allegations and viewing the factors
in the light most favorable to her on summary judgment, the Court will assume Mims was
subject to unwelcome harassment.
Regarding the third element, Mims must establish that the harassment by these
defendants was based on a protected characteristic – her race. This she has failed to do. The
only evidence in the record concerning this element consists of Mims’ conclusory and
unsupported statements, speculation and beliefs that Murphy was racist and/or acted with race in
regards to Mims, and that the individual board members somehow “rubber stamped’ this
behavior by voting to transfer (demote) Mims to the Alternative School.

See, e.g., Satchel v.

School Bd. of Hillsborough Cty., 251 Fed. Appx. 626, 630 (11th Cir. 2007) (concluding the
plaintiff failed to satisfy the third element when “the behavior she observed and experienced did
not consist of any racially derogatory statements or acts” and merely evinced a belief that a
coworkers was racist and the school system was affected by institutional racism).8
Specifically, Mims has submitted no evidence of discriminatory comments, racial
epithets, veiled racial remarks, or any actions based on race by Murphy and/or the individual
board members. Indeed, Mims has provided no evidence that any actions or treatment were
based on her race, or that her treatment by Murphy had any racial component. Rather, Mims’

8

An unsupported assertion does not create the requisite genuine issue of material fact to survive summary
judgment. Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985) (“This court has consistently held that
conclusory allegations without specific supporting facts have no probative value.”)

11

allegations are based on her own speculative assumptions.
Further, there is no evidence, of any sort, that any of the individual board members
engaged in any racially motivated actions as to Mims. Indeed, Mims has not shown that the
individual board members’ approval (described as a “rubber stamp”) of her transfer was racially
motivated or that race was a factor. And that act – voting to approve the transfer – is the sum
total allegation of discrimination leveled against the individual board members.
The same holds true to any claim by Mims that there existed a custom and policy of
discrimination – there is no evidence of such by any of the defendants. Only Mims unsupported
conclusory allegation.
Thus, Mims has failed to establish that any of the alleged acts on the part of Murphy,
and/or the individual board members, were based on race or even traceable to her race. Moore v.
Jimmy Dean/Sara Lee Foods, Inc., 520 F.Supp.2d 1359, 1363 (N.D. Ala. 2007). “Without an
evidentiary basis, finding harassment on the basis of…race is impossible since the Court has
nothing to evaluate.” Aaron v. Board of Regents of Univ. Sys. of Ga., 58 F.Supp.3d 1368, 1382
(M.D. Ga. 2014) (citing Mendoza v. Borden, Inc., 195 F.3d 1238 (11th Cir.1999); see also
Wheatfall v. Board of Regents University System of Georgia, 9 F.Supp.3d 1342 (N.D.Ga.2014)
(Noting that in reviewing a hostile work environment claim ‘without specifics ... a hypothetical
reasonable person has nothing to evaluate.’). The Record before the Court is wholly inadequate
to establish a claim for hostile work environment[]”).9 In sum, when viewing the facts in the
light most favorable to Mims, a reasonable jury could not find that the purportedly harassing
9

See also e.g., Jones v. Mabus, 2013 WL 4662821, *5 (M.D. Ga. Aug. 29, 2013) (“While the record
demonstrates ample evidence of impolite, rude, and insensitive behavior on the part of Jones, the evidence does not
reflect that there were any racial…components to Jones's particular brand of “management.” The facts reflect that
Jones treated all employees in an intolerable manner, behavior that ultimately led to his discharge. Thus, aside from
her unsupported assertion that she was discriminated against based on race…, Plaintiff has failed to present evidence
showing that Jones's conduct constituted harassment motivated by her race…”).

12

conduct was based on race.

Moreover, the conduct complained of was neither severe or

pervasive. Defendants’ motion on this claim is GRANTED.
2.

Disparate Treatment: Discriminatory Transfer

Mims alleges Section 1983 race discrimination (discriminatory transfer) against Murphy
and the board members in their individual capacities, relying upon the “Fourteenth Amendment”
and “equal protection of the law.”

(Doc. 18 at 1-2, 12). Mims’ equal protection race

discrimination claim is that Murphy and the individual defendants discriminatorily transferred
her from Shields to the Alternative School (“demoted” her) based on her race. Mims alleges that
she was not transferred to the same position (assistant principal/counselor) but was instead
relegated to the rank of teacher and assigned teacher duties/responsibilities versus administrative,
her duties and responsibilities were different, and she has been “severely degraded” as the
Alternative School is for students with disciplinary and behavioral problems. (Doc. 18).
Mims may support her claims with direct evidence, circumstantial evidence, or statistical
proof. Rioux v. City of Atlanta, Ga. 520 F.3d 1269, 1274 (11th Cir. 2008).10 There is no
allegation or submission of direct evidence or statistical proof by Mims. Thus, Mims’ “proof of
her claim of race discrimination is based on circumstantial evidence.” (Doc. 54 at 11).

Direct evidence of discrimination is “evidence which reflects a discriminatory or retaliatory attitude
correlating to the discrimination or retaliation complained of by the employee.” Wilson v. B/E Aerospace, Inc., 376
F.3d 1079, 1086 (11th Cir. 2004). Specifically, direct evidence is evidence, which if believed, proves the existence
of a fact in issue without inference or presumption. Taylor v. Runyon, 175 F.3d 861, 867 (11th Cir. 1999); Jones v.
Bessemer Carraway Med. Ctr., 151 F.3d 1321, 1323 n. 11 (11th Cir. 1998); Burrell v. Board of Trustees of Ga.
Military College, 125 F.3d 1390, 1393 (11th Cir. 1997). This means “only the most blatant remarks, whose intent
could be nothing other than to discriminate on the basis of [race].” Van Voorhis v. Hillsborough Cnty. Bd. of Cnty.
Comm'rs, 512 F.3d 1296, 1300 (11th Cir. 2008). See also Ferrell v. Masland Carpets, Inc., 97 F. Supp.2d 1114, 1123
(S.D. Ala. 2000). Moreover, evidence that merely suggests a discriminatory motive is, by definition, circumstantial
evidence. Burrell, 125 F.3d at 1393-1394. “[R]emarks by non-decisionmakers or remarks unrelated to the
decisionmaking process itself are not direct evidence of discrimination.” Standard 161 F.3d at 1330. “To be direct
evidence, the remark must indicate that the employment decision in question was motivated by race.” Scott v.
Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1227-1228 (11th Cir. 2002).
10

13

Where there is only circumstantial evidence, courts apply the framework in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See, e.g., Chapman v. AI Transp., 229 F.3d 1012,
1024 (11th Cir. 2000).

Under McDonnell Douglas, the plaintiff has the initial burden of

establishing a prima facie case of race discrimination. Id. To establish a prima facie case of
discriminatory transfer, Mims must show she was: 1) a member of a protected class; 2) qualified
for her current position; 3) subjected to a transfer constituting an adverse employment action;
and 4) replaced by someone outside her protected class. Hinson v. Clinch Cnty., Ga. Bd. of Ed.,
231 F.3d 821, 828 (11th Cir. 2000). An “adverse employment action” requires “a serious and
material change in the terms, conditions, or privileges of employment.” Webb–Edwards v.
Orange Cnty. Sheriff's Office, 525 F.3d 1013, 1031 (11th Cir. 2008) (internal quotation marks
omitted). The relevant inquiry is whether the employment action is “materially adverse as
viewed by a reasonable person in the circumstances,” regardless of the “employee's subjective
view of the significant adversity.” Id. A transfer can be adverse if it involves a serious and
material “reduction in pay, prestige, or responsibility.” Hinson, 231 F.3d at 829.
Further, in Sims v. MVM, Inc., 704 F.3d 1327, 1332-1333 (11th Cir. 2013), the Eleventh
Circuit clarified that the McDonnell Douglas framework is not the sine qua non for a plaintiff to
survive summary judgment. See Smith, 644 F.3d at 1328. “The plaintiff will always survive
summary judgment if he presents circumstantial evidence that creates a triable issue concerning
the employer's discriminatory intent.” Id. A triable issue of fact exists if the record, viewed in a
light most favorable to the plaintiff, presents a “convincing mosaic” of circumstantial evidence
that would allow a jury to infer intentional discrimination by the decisionmaker. Id. See
generally Hamilton v. Southland Christian School, Inc., 680 F.3d 1316, 1320 (11th Cir. 2012).
As to the first element, there is no dispute Mims is a member of a protected class, African
14

American. Second, the Court assumes on summary judgment that Mims is qualified for her
position (as Defendants have not asserted otherwise). Nevertheless, even viewing the facts in the
light most favorable to her, Mims has failed to show that the transfer constituted an adverse
employment action and that she was replaced by someone outside her protected class.
Specifically, Mims was transferred from the position of Assistant Principal/Counselor at
Shields to the position of Assistant Principal/Counselor at the Alternative School. (Docs. 35-6;
35-8; 39-10). Despite Mims’ subjective claims, however, only her work site changed. (Id.)
Mims’ pay remained the same.

(Id.)

Mims’ position and title remained the same.

(Id.)

Additionally, Mims consented to this transfer after reviewing (with counsel) her title, pay,
position, duties and responsibilities at the Alternative School. (Id.) A purely lateral transfer is
not an adverse employment action and thus, cannot support a prima facie case of discrimination.
See, e.g., Doe. v. Dekalb Cty. Sch. Dist., 145 F.3d 1441, 1449-1451 (11th Cir. 1998). See also
e.g., Pegram v. Honeywell, Inc., 361 F.3d 272, 283-284 (5th Cir. 2004); Jones v. District of
Columbia Dep't of Corr., 429 F.3d 276, 281 (D.C. Cir. 2005); Smith v. Alabama Dep't of Corr.,
145 F.Supp.2d 1291, 1297-1298 (M.D. Ala. 2001). Otherwise, “every trivial personnel action
that an irritable, chip-on-the-shoulder employee did not like would form the basis of a
discrimination suit[;]” “not everything that makes an employee unhappy is an actionable adverse
action.”

Doe, 145 F.3d at 1449. However, Mims’ subjective preferences and speculative

conclusions about her transfer do not transform a purely lateral transfer into an adverse
employment action. “[I]t seems significant that no panel of this [Eleventh] circuit has ever listed
a plaintiff's particular subjective preference as a basis for its holding that a transfer was adverse.”
Doe, 145 F.3d at 1551.

Consequently, because an adverse employment action is an

indispensable element of a discriminatory transfer claim, Turner’s failure to present sufficient
15

evidence for a reasonable jury to find that this element is met is fatal to her claim. See, e.g.,
Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th Cir. 1998) (“Although a
plaintiff's burden…is light, summary judgment against the plaintiff is appropriate if he fails to
satisfy any one of the elements of a prima facie case[]”).
Moreover, even if the Court were to assume an adverse employment action occurred,
Mims has failed to even allege, much less establish with evidentiary support, that she was
replaced by someone outside her protected class.
Further, there is no “convincing mosaic” of circumstantial evidence that would allow a
jury to infer intentional discrimination by the decisionmaker in these circumstances.
As Mims has failed to establish a prima facie case, the Court need not address
Defendants’ articulated legitimate, non-discriminatory reasons for the transfer, or the matters of
pretext or qualified immunity. As such, Defendants’ motion as to this claim is GRANTED.
3.

Retaliation

Mims alleges Section 1983 retaliation against Murphy and the board members in their
individual capacities, relying upon the “Fourteenth Amendment” and “equal protection of the
law.” (Doc. 18 at 12). Section 1983 provides a cause of action for retaliation. Bennett v.
Hendrix, 423 F.3d 1247 (11th Cir. 2005). However, a Section 1983 retaliation claim cannot be
brought under the equal protection clause. Watkins v. Bowden, 105 F.3d 1344, 1354-1355 (11th
Cir. 1997) (“[a] pure or generic retaliation claim...simply does not implicate the Equal Protection
Clause[]).” “The right to be free from retaliation is clearly established as a first amendment right
and as a statutory right under Title VII; but no clearly established right exists under the equal
protection clause to be free from retaliation.” Ratliff v. DeKalb Cty., Ga., 62 F.3d 338, 340 (11th
Cir. 1995). Mims’ Complaint references the “Fourteenth Amendment” and “equal protection”
16

multiple times, alleging Section 1983 retaliation. Thus, Mims’ Fourth Cause of Action for
Section 1983 equal protection retaliation as to these defendants (Doc. 18 at 12) is DISMISSED
as a matter of law. See, e.g., Betts v. Conecuh Cty. Bd. of Ed., 2014 WL 7411670, *7 (S.D. Ala.
Dec. 30, 2014) and Owens v. Jackson Cty. Bd. of Ed., 561 Fed. Appx. 846, 848 (11th Cir. 2014)
(addressing dismissals on similar grounds).
C. Title VII claims: First Cause of Action -- “Employment Discrimination: Title
VII, Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq” and Second
Cause of Action -- “Employment Discrimination: Retaliation”
Mims alleges Title VII claims against the School Board. (Doc. 18 at 3 at ¶6). Mims
appears to allege Title VII claims for disparate treatment (discriminatory transfer or “demotion”)
and retaliation. (Doc. 18 at 1-2, 12).
1.

Disparate treatment - Discriminatory Transfer (“demotion”)

In the First Cause of Action, Mims alleges that the racial discrimination by the School
Board “result[ed] in her demotion from positions of administrative duties and responsibilities.”
(Doc. 18 at 3, 9 at ¶13). When a Title VII disparate treatment claim is based on the same facts as
a Section 1981 or 1983 claim, “the analysis is the same under all theories of liability, and the
claims need not be analyzed separately.” Lindsey v. Board of School Com’rs of Mobile Cty., 491
Fed. Appx. 8, 9 (11th Cir. 2012). See also e.g., Richardson v. Leeds Police Dep't, 71 F.3d 801,
806 (11th Cir. 1995) (with “disparate treatment, in which § 1983 is employed as a remedy for the
same conduct attacked under Title VII, the elements of the two causes of action are the same…In
both instances, the plaintiff must prove that the defendant acted with discriminatory intent[]”);
Abel v. Dubberly, 210 F.3d 1334, 1338 (11th Cir. 2000) (providing that courts analyze Title VII
and Section 1983 under the same standards); Butts v. County of Volusia, 222 F.3d 891, 893–894
(11th Cir. 2000) (same). Thus, because Mims’ Title VII discriminatory transfer claim is based on
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the same facts as her Section 1983 discriminatory transfer claim, the same result detailed supra
Section III.B.2 follows here, such that summary judgment is GRANTED on this claim.
2.

Retaliation

In the Second Cause of Action, Mims alleges that the School Board retaliated against her
for complaining about Murphy’s actions as superintendent. This retaliation happened when they
“rubber stamped, ratified, condoned and/or approved the discriminator[y] actions of the
superintendent.” (Doc. 18 at 3 at ¶6, 10 at ¶17; Doc. 54 at 13).
Mims has not offered any direct evidence of retaliation. When a plaintiff produces only
circumstantial evidence, the Court applies the McDonnell-Douglas burden shifting framework,
see supra. In that regard, to establish a prima facie case of retaliation, Mims must prove that: 1)
she engaged in a statutorily protected activity; 2) she suffered an adverse employment action;
and 3) a causal link exists between the two. See, e.g., Bryant v. Jones, 575 F.3d 1281, 13071308 (11th Cir. 2009). If Mims establishes her prima facie case, the burden of production shifts
to the School Board to rebut the presumption by articulating a legitimate, nondiscriminatory
reason for the adverse employment action. Perkins v. Kushla Water Dist., 21 F. Supp. 3d 1250,
1266 (S.D. Ala. 2014); Smith, 565 Fed. Appx. at 776–77 (11th Cir. 2014); Bryant v. Jones, 575
F.3d 1281, 1308 (11th Cir. 2009). If the School Board carries this burden, the burden shifts back
to Mims to demonstrate that the School Board's proffered legitimate reasons for taking the
adverse action were a pretext for retaliation and that her protected activity was the “but-for”
cause of the adverse action. Mealing v. Georgia Dept. of Juvenile Justice, 564 Fed.Appx. 421,
427 (11th Cir. 2014). See also Perry v. Alabama Alcoholic Beverage Control Bd., 973 F.Supp.2d
1263, 1296 (M.D. Ala. 2013) (“the ultimate issue is whether the retaliation would not have
occurred but for the protected conduct” and “[e]ven if any of the alleged discrete actions of
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retaliation were sufficient to make out a prima facie case, they would not survive the ‘but-for’
test” based on the Supreme Court's clarification that the “level of causation” requires plaintiffs to
show that the adverse employment action “would not have occurred but for the plaintiff's
involvement with protected activity”).
Mims filed an EEOC charge, which satisfies the first element of her prima facie case.11
The Court turns to whether Mims has sufficiently shown that this protected activity resulted in an
adverse employment action.12
Mims states that her transfer to the Alternative School was the retaliatory action.
However, even if the Court were to assume that the transfer was a “demotion” and adverse
employment action as Mims asserts, her retaliation claim rests on a factual impossibility. Mims
was transferred from Shields to the Alternative School on June 7, 2012. (Doc. 35-7 at 3-4). The
Court notes that the EEOC Charges submitted with the motion to dismiss filings (Docs. 4-1 and
4-3) establish that she filed her initial EEOC Charge after she was transferred. Mims filed an
EEOC Charge on July 31, 2012 (received August 3, 2012), and another EEOC Charge on
September 28, 2012 (received October 5, 2012). (Docs. 4-1 and 4-3). Thus, because Mims was
transferred before she filed any EEOC Charge (54 days or more than seven (7) weeks prior), it is
a factual impossibility that the School Board could have transferred Mims in retaliation for filing
11

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, Fla., 565 Fed. Appx. 774, 776–777 (11th Cir.
2014) (quoting EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171, 1174 (11th Cir. 2000) (quoting 42 U.S.C. § 2000e–
3(a))). See Walton–Horton v. Hyundai of Ala,, 402 Fed. Appx. 405, 408 (11th Cir. 2010) (“Statutorily protected
expression includes internal complaints of discrimination to superiors, complaints lodged with the Equal
Employment Opportunity Commission, and discrimination-based lawsuits[]”); Tarmas v. Secretary of Navy, 433
Fed. Appx. 754, 762 (11th Cir. 2011) (“the filing of a claim with the EEOC is a ‘statutorily protected activity[]’”).
12

An adverse employment action is judged by an objective standard, Foshee v. Ascension Health–IS, Inc.,
384 Fed. Appx. 890, 892 (11th Cir. 2010), and is an act that would “dissuade a reasonable worker from making or
supporting a charge of discrimination[]” Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 64 (2006). It is not
limited to retaliatory actions that affect the terms and conditions of employment. Id. at 68.

19

an EEOC Charge as the Charge did not exist at the time of transfer.
Moreover, Mims provides no evidentiary support for her prima facie case and no specific
record cites to any evidence submitted ostensibly in support. Instead, Mims rests her claim on a
few sweeping statements that are confusing and lack record citations. For example, she asserts:
“[s]he testified to the Superintendent’s retaliatory actions after she filed her EEOC Charge.”
(Doc. 54 at 17). Similarly, Mims summarily states: “Plaintiff Mims testified how she was treated
different from other counselors, assiatant [sic] principals and white employees[.]” (Doc. 54 at
17). As stated supra, it is not the task of this Court to dig through the evidence submitted by
Mims on summary judgment to find support for her claims. That task belonged to Mims.
At best then, Mims states her retaliation case (without any citation) as: “Superintendent
Murphy had knowledge that they had field [sic] a charge of discrimination with the EEOC in
July 2012 and September 2012, combined with the close temporal proximity of the chain of
actions that followed thereafter, among them the hostile work environment while they were
working at the alternative school, suggests causation.” (Doc. 54 at 18). Presumably, the claim is
that because Mims filed EEOC complaints, she was subjected to a hostile work environment.
However as discussed supra, Mims has failed to present sufficient evidence of a hostile work
environment. Accordingly, the School Board’s motion is GRANTED on Mims’ Title VII
retaliation claim.
IV.

Conclusion
Accordingly, it is ORDERED that Mims’ Section 1981 claims for hostile work

environment, race discrimination, and retaliation are DISMISSED as a matter of law; and Mims’
Section 1983 claim for equal protection retaliation is DISMISSED as a matter of law.
Additionally as detailed supra, it is ORDERED that Defendants’ Motion for Summary
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Judgment (Docs. 27, 40) is GRANTED as to Mims’ Title VII retaliation and discriminatory
transfer claims; and GRANTED as to Mims’ Section 1983 discriminatory transfer and hostile
work environment claims.
A Final Judgment consistent with the terms of this Order shall be entered by separate
document as required by Rule 58 of the Federal Rules of Civil Procedure.
DONE and ORDERED this the 12th day of August 2015.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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