Shaw v. Mobile County Public School System, et al.

Filing 53

ORDER, DENYING 35 Motion for Summary Judgment filed by the Mobile County Public School System. Signed by Judge Callie V. S. Granade on 2/2/2015. (mab)

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SUELLEN SHAW,
Plaintiff,
vs.
MOBILE COUNTY PUBLIC SCHOOL
SYSTEM,
Defendant.

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Civil Action No. 14-0111-CG-B

ORDER
This case concerns a claim of discriminatory hiring practices within the
Mobile County Public School System. Suellen Shaw (“Plaintiff”) alleges the
Mobile County Public School System (“Defendant”) hires male driver’s
education teachers so they can coach football or other male sports. As a
result, Plaintiff contends Defendant unlawfully discriminated against her
based on her gender when she applied for certain driver’s education positions.
Before the Court are Defendant’s Motion for Summary Judgment (Doc. 35)
and supporting materials (Docs. 36 – 39), Plaintiff’s response in opposition to
the motion (Doc. 44) and supporting materials (Docs. 45 – 51), and
Defendant’s reply. (Doc. 52). Upon careful consideration and for the reasons
set forth herein, Defendant’s motion for summary judgment is due to be
denied.
I.

Procedural History
Plaintiff filed a charge of discrimination with the Equal Employment

Opportunity Commission (“EEOC”) on December 16, 2013. (Doc. 1, p. 3).
After the EEOC issued a right-to-sue letter (Doc. 1, Exh. 1, p. 1), Plaintiff
filed her complaint on March 11, 2014. (Doc. 1, p. 3). Plaintiff initially sued
the Mobile County Board of School Commissioners in their individual and
official capacities, but the parties agreed to dismiss the individual
defendants. (Docs. 10, 12, 13, 17). Plaintiff maintains her claim against the
Mobile County Public School System.
In her complaint, Plaintiff alleges Defendant unlawfully discriminated
against her based on her gender, violating Title VII of the Civil Rights Act.1
(Doc. 1, p. 8). Plaintiff specifically alleged “Defendant has engaged in a
pattern and practice of discrimination based on sex,” and “Plaintiff was
rejected for the position of Driver’s Education Teacher by Defendant based on
her sex.” (Doc. 1, p. 8). This caused Plaintiff to suffer mental anguish, loss of
dignity, embarrassment, humiliation, severe emotional distress, and other
injuries. (Doc. 1, p. 9). Through this lawsuit, Plaintiff seeks to redress this
alleged discrimination. (Doc. 1, p. 8).
Following discovery, Defendant filed a motion for summary judgment
arguing (1) Plaintiff “may only recover for discrete acts of discrimination that
occurred on or after June 16, 2013” (Doc. 37, p. 5), (2) Plaintiff cannot show
she suffered an adverse employment action (Doc. 37, p. 4), and (3) even if
Plaintiff timely filed her EEOC complaint and suffered an adverse
employment action, Defendant has presented legitimate non-discriminatory
Title VII of the Civil Rights Act of 1964 prohibits discrimination
“because of sex” or “on the basis of sex.” 42 U.S.C. § 2000e.
1

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reasons for its hiring decisions. (Doc. 37, p. 7; Doc. 52, pp. 2 – 5). Plaintiff
responded to the motion, stating she need only “demonstrate that gender was
a motivating factor for the employment practice, even though other factors
also motivated the practice.” (Doc. 44, p. 1). Plaintiff also argues that she
suffered an adverse employment action because the duties and
responsibilities of the desired positions were materially different than the
position she held. (Doc. 44, p. 8). Plaintiff contends there are disputed issues
of material fact that prohibit granting Defendant’s motion for summary
judgment as a matter of law. (Doc. 44, p. 20).
II.

Standard of Review
The court must “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). Rule 56(c) governs
procedures and provides that a party seeking summary judgment bears the
initial responsibility of informing the court of the basis for its motion. This
includes “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)). The mere
existence of a factual dispute will not automatically necessitate denial;
rather, only factual disputes that are material preclude entry of summary
judgment. Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804,

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809 (11th Cir. 2004).
The substantive law of the plaintiff’s cause of action determines
which facts are material and which are irrelevant. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). If a non-moving party fails to make a
sufficient showing on an essential element of its case on which it has the
burden of proof, the moving party is entitled to summary judgment. Celotex,
477 U.S. at 323. In reviewing whether a non-moving party has met its
burden, the Court must stop short of weighing the evidence and determining
credibility. Instead, the Court must draw all justifiable inferences in favor of
the non-moving party. Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 –
99 (11th Cir. 1992) (internal citations and quotations omitted). Thus the
inquiry is “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail
as a matter of law.” Liberty Lobby, 477 U.S. at 251–52.
III.

Facts2

Plaintiff is certified to teach physical education, driver’s education, and
act as a school counselor. (Doc. 36, p. 1). Plaintiff currently works as a
physical education teacher at Baker High School.3 (Doc. 36, pp. 1 – 2). Baker
High School is located in Mobile County, Alabama, as are each of the high

At the summary judgment stage, the facts are taken in the light most
favorable to the non-movant. Tipton, 965 F.2d at 998–99. 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).
3
As a physical education teacher, Plaintiff also teaches some driver’s
education classes. (Doc. 38, Exh. 1, p. 3).
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schools discussed in this case. Prior to working at Baker, Plaintiff worked as
a driver’s education teacher at Satsuma High School. (Doc. 45, p. 3). Plaintiff
transferred to Satsuma in 2011 through Defendant’s mandatory transfer
process. (Doc. 45, p. 3; Doc. 46, Exh. 1, pp. 1 – 2). While teaching driver’s
education at Satsuma, Plaintiff received state recognition for her work. (Doc.
44, p. 6; Doc. 46, Exh. 1, p. 2). Before working at Satsuma, Plaintiff worked at
B.C. Rain High School from 2000 to 2011. (Doc. 45, p. 3). B.C. Rain classified
Plaintiff as a driver’s education teacher, but she also coached girls’ sports and
taught physical education courses there. (Doc. 45, p. 3). Plaintiff alleges she
could not return to B.C. Rain after working at Satsuma because B.C. Rain
“needed a slot for a football coach,” so “they waited for somebody to get
certified” to teach driver’s education. (Doc. 45, p. 3; Doc. 46, Exh. 8, p. 3).
On May 15, 2012, Plaintiff asked Defendant about available driver’s
education positions, observing “since Feb. 6th you and HR knew you needed
to place me in a Driver Education position due to the Satsuma split. Since
that time, a ‘hiring freeze’ has been put into place yet two (2) Driver
Education positions, Blount and Baker, have been filled with hires from
outside the system.” (Doc. 48, Exh. 12, p. 2). John Powell, Personnel
Administrator with the Mobile County Pubic Schools, replied to Plaintiff’s
inquiry and stated, “As I said previously I will try to find you a position to
your liking. As you have been a coach during your career you understand the
need to bring in coaches. That is what happened this semester.” (Doc. 48,
Exh. 12, p. 1).

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Ultimately, Plaintiff did not obtain a driver’s education position in
2012. Plaintiff filed an EEOC charge in December 2012 asserting gender
discrimination by Defendant. (Doc. 45, p. 12). Defendant responded to the
charge and reported to the EEOC that it had no driver’s education vacancies
in 2012 when Plaintiff herself transferred. (Doc. 45, p. 12; Doc. 49, Exh. 11, p.
2). Plaintiff’s 2012 EEOC charge did not proceed. (Doc. 45, pp. 11 – 12).
Despite Defendant’s statement regarding vacancies (Doc. 49, Exh. 11,
pp. 1 – 2),4 Plaintiff documents schools that hired or assigned male employees
to teach driver’s education in 2012. Baker High School hired Carlton Everett
around March 1, 2012 to teach driver’s education and coach football. (Doc. 45,
p. 5).5 Around May 1, 2012, Blount High School hired Mark Hurt to teach

Defendant provides affidavits and depositions showing a high school
principal can adjust the schedules of teachers with multiple certifications, for
example, by adding a class to a teacher’s schedule in a different subject in
which that teacher is also certified. (Doc. 38, Exh. 5, pp. 8 – 9).
5
The record shows Baker High School may have initially hired Everett
to teach Social Studies. (Doc. 46, Ex. 5, pp. 25 – 26). Everett, however, did not
teach Social Studies. (Doc. 45, p. 7).
Q So if Mr. Richardson hired a driver’s ed teacher in a social studies
spot and never intended for him to teach social studies, that would be
improper procedures; is that correct?
A I would say he was putting one over on us and trying to get around
the mandatory transfer stuff.
Q And he would be -A I would say that is wrong, yeah, I would say he’s wrong that he did
that.
…
Q Were you aware that Clem Richardson indicated to Ms. Shaw that
he didn’t have any vacancies?
A There he’s saying he doesn’t have any driver’s ed vacancies. I wasn't
aware of this email exchange. I wasn’t aware that he did that. Like I
said, some of our principals are more aggressive in trying to get who
they want. Clem does a good job. I mean, every year he takes people on
mandatory transfer. He takes people on the mandatory transfer list
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physical education and coach football, and then reassigned him to driver’s
education. (Doc. 45, pp. 5 – 6). In the summer of 2012, Mary G. Montgomery
High School assigned Joseph Touchstone to teach driver’s education and
coach football. (Doc. 45, p. 7).
In 2013, Plaintiff applied and interviewed for driver’s education
positions at Murphy High School and Citronelle High School. (Doc. 36, p. 2;
Doc. 45, pp. 8 – 9). Plaintiff did not get either job; instead, the two schools
selected male applicants to teach the driver’s education classes. (Doc. 36, p.
2). One male applicant coached football and boys soccer (Doc. 47, Exh. 15, pp.
2, 8), and the other male applicant coached baseball. (Doc. 50, pp. 3, 19). At
the time the job offers were made, one of the male applicants was not
certified to teach driver’s education. (Doc 45, p. 8). Currently, all of the
driver’s education teachers at both high schools are men who coach male
sports. (Doc. 45, pp. 6 n. 6, 8 – 9).
Plaintiff notes there are thirty-one driver’s education teachers in
Mobile County, and two are female. (Doc. 45, p. 11). Of those thirty-one
teachers, thirteen are full-time and one of the full-time teachers is female.
(Doc. 45, p. 11). Since 2005, only males who coach sports have been hired or
placed in full-time driver’s education positions. (Doc. 45, p. 11). Plaintiff
further asserts males who coach sports are routinely hired as driver’s
education teachers even though those positions are not posted and advertised
without a complaint. But, you know, this doesn’t look like he did the
right thing on there.
(Dep. of Bryan Hack, Executive Manager of Human Resources, Mobile
County Public School System, Doc. 46, Ex. 5, pp. 25 – 26).
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as required under Defendant’s policies and state law. (Doc. 45, pp. 1, 8 – 10).
In her response, Plaintiff documents specific violations of hiring procedures,
such as the failure to interview three candidates for job openings, the absence
of interview control forms in the files of newly hired driver’s education
teachers, and being informed during an interview for a driver’s education
position that the school had already selected a male applicant for the job.
(Doc. 44, pp. 2 n. 1, 13 – 16).
On December 16, 2013, Plaintiff again filed an EEOC charge based on
gender discrimination. (Doc. 37, p. 2). The EEOC issued to Plaintiff a rightto-sue letter on December 26, 2013. (Doc. 1, Exh. 1). Plaintiff initiated this
lawsuit on March 11, 2014, claiming Defendant discriminated against her
because of her sex. (Doc. 1).
IV.

Analysis
Under Title VII of the Civil Rights Act of 1964, an employer may be

found liable for unlawful sex discrimination under any one of three separate
theories: pattern and practice discrimination, disparate treatment
discrimination, or disparate impact discrimination. See Griffin v. Carlin, 755
F.2d 1516, 1522, 1526 – 28 (11th Cir. 1985) (discussing disparate impact
theory, disparate treatment theory, and pattern or practice analysis). In this
case, Plaintiff raises two of the three theories, pattern and practice
discrimination and disparate treatment discrimination.6 (Doc. 1, p. 8). A

Pleadings must state a short and plain statement of the claim showing
that a pleader is entitled to relief. See Fed. R. Civ. P. 8(a)(2); Ashcroft v.
Iqbal, 556 U.S. 662, 677 (2009). In her complaint, Plaintiff stated “[t]his is a
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private litigant, however, cannot maintain a pattern or practice claim unless
it is brought as a class action and a class is certified. Davis v. Coca-Cola
Bottling Co., 516 F.3d 955, 969 (11th Cir. 2008). Therefore, Plaintiff may only
proceed under a disparate treatment theory.
The primary issue in a gender based disparate treatment claim is
whether the employer intentionally discriminated against the employee
because of her gender. See U.S. Postal Service Bd. of Governors v. Aikens,
460 U.S. 711, 715 (1983). In a disparate treatment case, the plaintiff bears
the ultimate burden of proving that the employment action at issue was
taken because of the plaintiff’s sex. See Holifield v. Reno, 115 F.3d 1555,
1564–65 (11th Cir. 1997). To meet this burden, plaintiffs must show
discriminatory intent through either direct or circumstantial evidence. See
U.S. Postal Service Bd. of Governors, 460 U.S. at 714 n. 3.
When a plaintiff lacks direct evidence and must prove discrimination
circumstantially, the claim is evaluated using the McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973) burden shifting framework. Under this
framework, the Title VII plaintiff has the initial burden of establishing a
prima facie case of discrimination. Id. at 802. The defendant can rebut the
claim to redress unlawful discrimination on the basis of sex in violation of
Title VII,” “Plaintiff was rejected for the position of Driver’s Education
Teacher by Defendant based on her sex,” and “Defendant has engaged in a
pattern and practice of discrimination based on sex.” (Doc. 1, p. 8). Plaintiff
also provided factual allegations in support of her claim (Doc. 1, pp. 3 – 8),
which may entitle her to relief. See id. at 679 (“When there are well-pleaded
factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.”). Plaintiff has
sufficiently stated a gender discrimination claim under a disparate treatment
theory. (Doc. 52, p. 5).
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disparate treatment claim if it can articulate a non-discriminatory reason for
its employment action, as explained further below. Plaintiff can then argue
the rationale provided by the defendant is a pretext. Id. at 804.
Before examining Plaintiff’s prima facie discrimination case, the Court
must first determine whether Plaintiff timely filed her EEOC charge. If
Plaintiff timely filed her EEOC charge, then the Court must consider
whether she suffered an adverse employment action. If Plaintiff clears these
two hurdles, the Court will analyze her discrimination claim.
a. Filing an EEOC Charge
At the outset, the Court must determine whether Plaintiff properly
filed her EEOC charge. “Section 706 of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e–5, governs the filing of charges of discrimination
with the EEOC.” Edelman v. Lynchburg Coll., 535 U.S. 106, 112 (2002). In
order to assert a claim of gender discrimination under Title VII, a claimant
must file a complaint with the EEOC within 180 days after the alleged
discriminatory practice occurred. 42 U.S.C. § 2000e-5(e).7 This 180-day period
“begins to run from the time that the complainant knows or reasonably
should know that the challenged act has occurred.” Allen v. U.S. Steel Corp.,
665 F.2d 689, 692 (5th Cir. 1982) (citations omitted). The plaintiff also must
file her complaint within 90 days of exhausting her administrative remedies
and receiving her “right-to-sue” letter from the EEOC. See 42 U.S.C. § 2000eIf the complainant has first instituted proceedings with a state or local
agency, the filing period is extended to 300 days or 30 days after the denial of
relief by the agency. 42 U.S.C. § 2000e–5(e)(1). Because the 180–day period
applies to this case, that figure will be used throughout.
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5(f)(1); Green v. Union Foundry Co., 281 F.3d 1229, 1233 – 34 (11th Cir.
2002).
Discrete acts such as termination, failure to promote, denial of
transfer, or refusal to hire may start the 180-day clock for discrimination
claims. Each incident of discrimination and each retaliatory adverse
employment decision constitutes a separate actionable “unlawful employment
practice.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002).
“The timely filing provision only requires that a Title VII plaintiff file a
charge within a certain number of days after the unlawful practice
happened.” Id. at 117.8
Here, Plaintiff filed the EEOC charge in question on December 16,
2013. (Doc. 45, p. 12). Plaintiff relies on two discrete acts that occurred in the
summer of 2013 for her EEOC complaint. The first discrete act occurred
when a driver’s education teacher retired at Murphy High School, creating an
The Court recognizes that the Lily Ledbetter Fair Pay Act of 2009 (“the
Act”) amended 42 U.S.C. § 2000e-5. PUB. LAW NO. 111-2, 123 Stat. 5 (2009).
The Act applies to discrimination cases concerning equal pay, which is not
raised as an issue here, but it helps explain when an EEOC charge should be
filed. The Act expressly overturned the Supreme Court’s ruling in Ledbetter
v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007). In that case, the
Supreme Court found the employee must “file charges year by year, each
time Goodyear failed to increase her salary commensurate with the salaries
of male peers.” As a result, “[a]ny annual pay decision not contested
immediately (within 180 days)” became “grandfathered, a fait accompli
beyond the province of Title VII ever to repair.” Id. at 644. (Ginsburg, J.,
dissenting). The law now provides each discriminatory paycheck (rather than
simply the original decision to discriminate) resets the 180-day limit to file a
claim. This is analogous to a discrete act that triggers or “resets” the 180-day
limit. See Nat’l R.R. Passenger Corp., 536 U.S. at 113 (“Each discrete
discriminatory act starts a new clock for filing charges alleging that act.”).
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opening for the position. The Principal of Murphy High School recommended
a man who also coaches male sports for the position. (Doc. 45, p. 8). The male
coach ultimately got the job in August 2013. (Doc. 50, pp. 7 – 8). This discrete
act falls within the 180-day window for Plaintiff’s EEOC charge. The second
discrete act took place when Citronelle High School had a vacancy for a
driver’s education teacher in May 2013. On or about August 14, 2013,
Citronelle hired a man who also coaches male sports for the position. (Doc.
45, p. 9). These two discrete acts, which can be considered a refusal to hire or
a denial of transfer, occurred less than 180 days before Plaintiff filed her
EEOC charge in December 2013. Plaintiff timely filed her EEOC charge.
Defendant, however, argues that the “EEOC has no jurisdiction to
consider claims based” on facts that “occurred before the date” Plaintiff filed
her charge. (Doc. 37, p. 5). Defendant further argues the claims in a federal
action cannot extend beyond those claims over which the EEOC had
jurisdiction. (Doc. 37, p. 5). These arguments misconstrue the law, and
require clarification.
First, this Court can certainly consider claims based on facts that fall
within the 180-day timeframe for filing an EEOC charge. And Plaintiff can
cite anecdotal or statistical evidence beyond that timeframe to help prove
discrimination.9 Second, “the scope of an EEOC complaint should not be

To be sure, “discrete discriminatory acts are not actionable if time
barred, even when they are related to acts alleged in timely filed charges.”
Nat’l R.R. Passenger Corp., 536 U.S. at 113. The Supreme Court makes clear,
however, that the “existence of past acts and the employee’s prior knowledge
of their occurrence . . . does not bar employees from filing charges about
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strictly interpreted.” Gregory v. Ga. Dep’t of Human Res., 355 F.3d 1277,
1280 (11th Cir. 2004) (citation omitted); see also Sanchez v. Standard Brands,
Inc., 431 F.2d 455, 466 (5th Cir. 1970) (noting that allegations in a judicial
complaint filed pursuant to Title VII may encompass any kind of
discrimination related to the allegations contained in the EEOC charge).
Here, the judicial complaint plainly encompasses the allegations contained in
Plaintiff’s EEOC charge: gender discrimination specific to driver’s education
teacher hiring in Mobile County. Finally, the requirement that a claimant file
“a timely charge of discrimination with the EEOC is not a jurisdictional
prerequisite to suit in federal court, but a requirement that, like a statute of
limitations, is subject to waiver, estoppel, and equitable tolling.” Zipes v.
Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). In light of these
considerations, the Court finds Plaintiff timely filed her EEOC charge in
December 2013, and the scope of the EEOC charge concerns discriminatory
driver’s education teacher hiring in Mobile County.
b. Adverse Employment Action
Plaintiff must show that she suffered an adverse employment action to
proceed in her discrimination claim. Defendant argues Plaintiff sought a
purely lateral transfer, and therefore she did not suffer an adverse
employment action when she did not get hired for the driver’s education
related discrete acts so long as the acts are independently discriminatory and
charges addressing those acts are themselves timely filed. Nor does the
statute bar an employee from using the prior acts as background evidence in
support of a timely claim.” Id. Moreover, Plaintiff’s pattern or practice
evidence is not irrelevant simply because she cannot bring such a claim as a
private litigant. Davis v. Coca-Cola, 516 F.3d at 970 n. 33.
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positions at Murphy High School or Citronelle High School. (Doc. 37, pp. 6 –
7). “Whether a particular reassignment is materially adverse depends upon
the circumstances of the particular case, and should be judged from the
perspective of a reasonable person in the plaintiff’s position, considering all
the circumstances.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,
71 (2006) (internal quotation and citation omitted).
Generally, an adverse employment action is a “tangible employment
action [that] constitutes a significant change in employment status such as
hiring, firing, failing to promote, reassignment with significantly different
responsibilities or a decision causing a significant change in benefits.”
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998) (citations
omitted). To prove an adverse employment action occurred, an employee
must show a serious and material change in the terms, conditions, title,
prestige, or privileges of employment. Davis v. Town of Lake Park Fla., 245
F.3d 1232, 1238 (11th Cir. 2001). Moreover, the employee’s subjective view of
the significant adversity of the employer’s action is not controlling. Id. at
1239; see also Doe v. Dekalb Cnty. Sch. Dist., 145 F.3d 1441, 1449 – 54 (11th
Cir. 1998) (discussing transfers that amount to adverse employment action,
and advising district court it should explain why it believes that a reasonable
person in plaintiff’s position would or would not have found the transfer to
have been an adverse employment action). A “bruised ego” is not enough.
Flaherty v. Gas Research Inst., 31 F.3d 451, 456 (7th Cir. 1994).
Plaintiff articulates reasons why teaching driver’s education is not

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merely a lateral transfer and could be considered a better job than her
current one as a physical education teacher at Baker High School. (Doc. 44, p.
8). Plaintiff contends the driver’s education positions involve a change of
duties and responsibilities, and a change of job classification. (Doc. 44, p. 8).
Driver’s education teachers oversee fewer students at any given time than
physical education teachers, and the jobs are generally less demanding. (Doc.
44, p. 9). Additionally the driver’s education positions provide more free time
than other teaching jobs, which allows driver’s education teachers to pursue
coaching opportunities and thus increase their overall salaries. (Doc. 44, p. 8).
The principal at Citronelle High School stated that the driver’s education
placement is considered “moving up.” (Doc. 44, p. 8; Doc. 46, Exh. 4, p. 4).
Based on this record and considering all of the circumstances, a jury could
reasonably conclude that the failure to hire or transfer an employee from
physical education to driver’s education would have been materially adverse
to a reasonable employee.
c. Establishing a Prima Facie Gender Discrimination Case
Plaintiff first argues she has direct evidence of discrimination (Doc. 44,
p. 2), but also states Defendant’s actions imply a discriminatory intent. (Doc.
44, p. 4). Plaintiff then proceeds with a burden shifting analysis. (Doc. 44, p.
4). The Court agrees with Defendant that Plaintiff’s evidence of
discrimination is circumstantial. (Doc. 52, pp. 1 – 2). Therefore, the
McDonnell Douglas burden-shifting framework applies. Wilson v. B/E
Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004) (citations omitted).

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Under this framework, the burden is first on plaintiff to establish a prima
facie case. To establish a prima facie case of sex discrimination under Title
VII, a plaintiff must prove: (1) she is a member of a protected class; (2) she
was subjected to adverse employment action; (3) her employer treated
similarly situated employees who are not members of the plaintiff’s class
more favorably; and (4) she was qualified for the job. Rice-Lamar v. City of
Ft. Lauderdale, Fla., 232 F.3d 836, 842 – 43 (11th Cir. 2000). “The burden of
establishing a prima facie case of disparate treatment is not onerous.” Texas
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Here, the parties do not dispute that Plaintiff, a female, is a member of
a protected class. See B/E Aerospace, Inc., 376 F.3d at 1089. She applied for
positions as a driver’s education teacher, and the positions were given to
men. Plaintiff presents substantial evidence that she was qualified for the
job. Plaintiff has thus satisfied the four factors needed for a prima facie
discrimination case.
d. Burden shifting after establishing prima facie case
Once the plaintiff has established a prima facie case of discrimination,
the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection. See id. If the employer
meets this burden of production, the plaintiff must then establish that the
defendant’s proffered reasons for the employee’s rejection were pretextual.
Lee v. GTE Fla., Inc., 226 F.3d 1249, 1253 (11th Cir. 2000). An employer’s
deviation from its own standard procedures may serve as evidence of pretext.

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Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1299 (11th Cir.
2006); see also Bass v. Bd. of Cnty Com’rs, Orange Cnty, Fla., 256 F.3d 1095,
1108 (11th Cir. 2001) (stating that employer’s violation of its own hiring
procedure could be evidence of pretext) overruled in part on other grounds by
Crawford v. Carroll, 529 F.3d 961 (11th Cir. 2008).
Defendant articulates a legitimate, non-discriminatory reason for its
hiring decisions.10 (Doc. 37, p. 7). Defendant states the male employees hired
at Murphy High School and Citronelle High School had good working
relationships with the administrators at each school, and the Principals
making the decisions held each of the employees in high esteem. (Doc. 37, p.
7). Plaintiff argues this reasoning is pretext because neither position was
posted, nor were interview procedures followed. (Doc. 44, p. 13). Plaintiff
further states Defendant’s willingness to bend or break rules for the
placement of male coaches in driver’s education is ample evidence of pretext.
(Doc. 44, p. 14). The Court agrees. Thus Plaintiff has created an issue of fact
as to whether the Defendant’s reason was untrue and discrimination
occurred. As a result, Plaintiff has satisfied her pretext burden.
V.

Conclusion
The Court finds Plaintiff has demonstrated there are genuine disputes

Defendant, citing 42 U.S.C. § 2000e-5(g)(2)(B), states it can “escape all
liability for damages on the Title VII claim if [it] can establish that the same
decision would have been made for non-discriminatory reasons.” (Doc. 37, p.
4). Plaintiff may nevertheless obtain declaratory relief, injunctive relief, and
attorney’s fees and costs if she proves Defendant violated 42 U.S.C. §2000e2(m) (employer using impermissible motivating factor). See 42 U.S.C. §
2000e-5(g)(2)(B)(i).
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of material facts underlying her discrimination claim. As a result, there are
allegations in this case that a fact-finder must decide, and Defendant’s
arguments cannot be decided as a matter of law. Accordingly, Defendant’s
Motion for Summary Judgment (Doc. 35) is DENIED.
DONE and ORDERED this 2nd day of February, 2015.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE

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