Nelson v. Washington County Board of Education

Filing 56

ORDER granting 36 Motion for Summary Judgment. Signed by Magistrate Judge Katherine P. Nelson on 4/14/2017. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
HUNTERIA B. NELSON,
Plaintiff,
vs.
WASHINGTON COUNTY
BOARD OF EDUCATION,
Defendant.

:
:
:
:
:
:
:
:
:

CIVIL ACTION 15-661-N

ORDER
Currently pending before this Court is Defendant, Washington County Board
of Education’s (“Board” or “Defendant”), Motion for Summary Judgment and Brief
in Support thereof with exhibits, under Federal Rule of Civil Procedure 56(c).
(Docs. 36, 37, and 38 respectively). The parties have consented to jurisdiction by
Magistrate Judge pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. (Doc. 20).
Plaintiff has filed a response to the motion (Doc. 47)1 to which Defendant has
replied (Doc. 44). The undersigned additionally granted Plaintiff leave to file a SurReply (Doc 46-1) and the same has been considered for purposes of this order. After
careful consideration of the record, Defendants’ Motion for Summary Judgment as
to all counts of Plaintiff’s Amended Complaint (“Complaint”) is granted pursuant to
Rule 56(c) as there are no genuine issues of material fact for a jury to consider.

Plaintiff filed three responses (Docs. 42, 43, and 47), the latter two being corrected versions of the
original. The Court has previously deemed Plaintiff’s Response timely and for purposes of this order,
the undersigned will rely only on Plaintiff’s Second Corrected Response (Doc. 47).

1

1

FACTUAL AND PROCEDURAL BACKGROUND
In March, 2015, Plaintiff, an African American female, applied for the vacant
position of Curriculum Assessment/Federal Programs Coordinator (“Coordinator”)
for the Washington County School System. (Doc. 18 at 2; Doc. 37 at 1).

On or

about April, 23, 2015, Plaintiff was informed that she was not selected to fill the
vacancy. (Doc. 18 at 3). Instead, the Board unanimously approved Betty Brackin
(“Brackin”) for the Coordinator position following the recommendation of the
Superintendent, Tim Savage (“Savage”), a white male. (Id.) Plaintiff timely filed a
charge of race discrimination with the Equal Opportunity Commission against the
Board and subsequently received a Notice of Right to Sue. (Doc. 18 at 4; Doc. 36 at
1).
At the time of her hiring, Brackin had just received her Class A, Instructional
Leadership Certificate, the minimum requirement for the Coordinator vacancy.
(Doc. 18 at 4). At the time Plaintiff was rejected for the position, she had held her
Class A Educational Administrator Certificate for nine years, held a doctorate in
Educational Leadership (since 2010), had a J.D. from Loyola University School of
Law in New Orleans, Louisiana, had been a licensed attorney in the State of
Alabama since 2000, and had sixteen years of work at various levels in the Alabama
Public School System. (Id.) Plaintiff additionally had administrative experience as
an Administrative Intern (assistant Principal) at Booker T. Washington Middle
School, Site Supervisor for summer school at Denton Middle School, which serves as
the site for all failing students for the Mobile County Public School System, and was

2

Mathematics Department Chair and Saturday School Administrator for Pillans
Middle School in Mobile, County. (Id.)
Plaintiff asserts that unlike Brackin, (1) Plaintiff’s administrative experience
was acquired after the completion of her administrative certification, (2) Plaintiff
was not given an administrative “edge” by working in positions without the
necessary qualification, and (3) that Plaintiff’s qualifications far exceed those of
Brackin. (Id. at 3-4). As a result, Plaintiff contends she was denied the position for
Coordinator based on race. (Id. at 4). Plaintiff further asserts that she was denied
a second job opportunity of Principal of Washington County High School in
retaliation for her pending EEOC charge of racial discrimination. (Id.)
Plaintiff filed this action against the Board on December 29, 2015, “pursuant
to the Title VII of the Civil Rights Act of 1964, and 42 U.S.C. Sections 1981, as both
have been amended, and the Equal Protection Clause of the 14th Amendment to the
United States Constitution made actionable by 42 U.S.C. Section 1983.” (Doc. 1 at
1). On March 18, 2016, the Board filed an Answer (Doc. 8) and a Motion for More
Definite Statement seeking clarification for, among other things, Plaintiff’s alleged
retaliation claim, Count III. (Doc. 7). On April 4, 2016, Plaintiff responded to the
Board’s Motion clarifying that with regard to the retaliation claims the Complaint
“should state “Plaintiff was also denied a second vacancy that became available
during the EEOC investigation of Plaintiff’s initial charge of discrimination.
Plaintiff contends that the second denial was in retaliation for her initial complaint
of race discrimination.” (Doc. 15 at 1). Plaintiff further stated as follows:

3

The retaliation claims are brought pursuant to 42 U.S.C. Sections
1981, made actionable by 42 U.S.C. Sections 1983, Count III, and the Equal
Protection Clause of the Fourteenth Amendment of the United States
Constitution, which is Count I of the Complaint.
There is a Title VII retaliation claim pending at the EEOC due to
Plaintiff being rejected for the position of Principal at Washington County
High School, which Plaintiff expects to add by amendment once a Notice of
Rights is received on that Charge, bearing number 425-2016-00201. However,
at this point, there is no Title VII retaliation claim mentioned in the
Complaint in this case, and there is no obligation on Plaintiff’s part to submit
a Notice of Rights for a claim that is not in her Complaint.
(Doc. 15 at 2).

Plaintiff filed an Amended Complaint (“Complaint”) on April 7,

2016. (Doc. 18). With regard to the retaliation claim, the Amended Complaint
included the clarified language stated above and, again, asserted Plaintiff was
retaliated against in Count III. (Doc. 18 at 4).

On January 30, 2017, Defendant

filed the present Motion for Summary Judgment as to all Counts of Plaintiff’s
Complaint. (Doc. 36). Plaintiff responded on March 7, 2017 (Doc. 42), Defendant
has replied (Doc. 44) and Plaintiff has filed a Second Corrected Response (Doc. 47)
and a Sur-Reply (Doc. 46-1). Defendant’s motion is now ripe.
LEGAL STANDARD
“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). “An issue of fact is ‘material’ if it might
affect the outcome of the suit under governing law and it is ‘genuine’ if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.” Ave.
CLO Fund, Ltd. v. Bank of Am., N.A., 723 F.3d 1287, 1294 (11th Cir. 2013)
(quotations omitted). “Summary judgment is only appropriate if a case is ‘so one-

4

sided that one party must prevail as a matter of law.’ ” Quigg v. Thomas Cty. Sch.
Dist., 814 F.3d 1227, 1235 (11th Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251-52 (1986)) (citation omitted). However, 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 v. Bradshaw, 573
F.3d 1158, 1165 (11th Cir. 2009) (per curiam). In other words, “there must be
enough of a showing that the jury could reasonably find for that party … Where the
record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Allen v. Tyson Foods, Inc., 121
F.3d 642, 646 (11th Cir. 1997) (quotations omitted).
“[C]ourts are required to view the facts and draw reasonable inferences in the
light most favorable to the party opposing the summary judgment motion.” Jackson
v. West, 787 F.3d 1345, 1352 (11th Cir. 2015) (quoting Scott v. Harris, 550 U.S. 372,
378 (2007) (alteration adopted) (quotations omitted)). See also Allen, 121 F.3d 642,
646 (11th Cir. 1997) (“The evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” (quotations omitted)). “The
Court

‘must

avoid

weighing

conflicting

evidence

or

making

credibility

determinations.’ ” Ave. CLO Fund, 723 F.3d at 1294 (quoting Stewart v. Booker T.
Washington Ins., 232 F.3d 844, 848 (11th Cir. 2000)). However, “ ‘an inference
based on speculation and conjecture is not reasonable.’ ” Id. (quoting Blackston v.
Shook & Fletcher Insulation Co., 764 F.2d 1480, 1482 (11th Cir. 1985)).

5

DISCUSSION
A.

Title VII and §§ 1981 and 1983 Claims

In Count One of her Complaint, Plaintiff asserts that Defendant violated the
Equal Protection Clause of Fourteenth Amendment by discriminating against her
based on race. (Doc. 18 at 4). In Count Two, Plaintiff asserts Defendant violated
Title VII of the Civil Rights act of 1991. (Id. at 5). In Count Three, Plaintiff asserts
that Defendants retaliated and discriminated against Plaintiff by “it rejection of her
for the position of Principal at Washington County High School,” in violation of 42
U.S.C. Section 1981, as made actionable by 42. U.S.C. 1983. (Id.)
The analysis of disparate treatment claims under § 1983 is identical to the
analysis under Title VII where the facts on which the claims rely are the same.” See
Abel v. Dubberly, 210 F.3d 1334, 1338 (11th Cir. 2000) (holding that Title VII and §
1983 claims have the same elements where the claims are based on the same set of
facts); Stallworth v. Shuler, 777 F.2d 1431, 1433 (11th Cir. 1985) (stating that
“[w]here, as here, a plaintiff predicates liability under Title VII on disparate
treatment and also claims liability under sections 1981 and 1983, the legal elements
of the claims are identical ... [and] we need not discuss plaintiff's Title VII claims
separately from his section 1981 and section 1983 claims.”).

As a result, the

undersigned will address Plaintiff’s Title VII and §§ 1981 and 1983 claims based on
race discrimination, together.
1.

Prima-Facie Case and Legitimate, Non-Discriminatory Reason
for Action

6

Title VII makes it unlawful for an “employer” to “discharge any individual, or
otherwise discriminate against any individual with respect to [her] compensation,
terms, conditions, or privileges of employment, because of such individual's ... race,
color, religion, sex, or national origin” 42 U.S.C. § 2000e–2(a)(1). “Plaintiff is not
required to prove directly that race was the reason for the employer’s challenged
decision; instead a plaintiff may rely on either direct or circumstantial evidence of
discrimination. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 526 (1993); See Also
Wright v. Southland Corp., 187 F.3d 1287, 1292 (11th Cir. 1999) (“when a plaintiff
has direct evidence of illegal discrimination, he need not make use of the McDonnell
Douglas presumption, and conversely, when he does not have such direct evidence,
he is required to rely on the McDonnell Douglas presumption.”)
Plaintiff does not assert direct evidence of discrimination. (Doc. 43 at 3). As
such, the Court must apply the McDonnell Douglas burden shifting framework to
determine whether intentional discrimination can be inferred from circumstantial
evidence.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36

L.Ed.2d 668 (1973). Under the McDonnell Douglas approach, a plaintiff has the
initial burden of establishing a prima-facie case of unlawful discrimination by a
preponderance of the evidence. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at
1824. A prima-facie case requires “evidence adequate to create an inference that an
employment decision was based on a[n] [illegal] discriminatory criterion.” Int'l Bhd.
of Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d
396 (1977). A plaintiff's prima-facie case raises a presumption of illegal

7

discrimination. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct.
1089, 1094, 67 L.Ed.2d 207 (1981).
If the plaintiff establishes a prima-facie case, the burden then shifts to the
defendant to rebut the presumption by articulating a legitimate, non-discriminatory
reason for its employment action. Holifield v. Reno, 115 F.3d 1555, 1564 (11th
Cir.1997). “This intermediate burden is exceedingly light.” Id. (internal quotations
and citations omitted). The defendant has a burden of production, not persuasion,
and does not have to persuade a court that it was actually motivated by the reason
advanced. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Burdine, 450 U.S.
at 253–55, 258, 101 S.Ct. at 1093–94, 1096.

Once the defendant satisfies this

burden of production, “the presumption of discrimination is eliminated and ‘the
plaintiff has the opportunity to come forward with evidence, including the
previously produced evidence establishing the prima-facie case, sufficient to permit
a reasonable fact finder to conclude that the reasons given by the employer were not
the real reasons for the adverse employment decision.’ ” Chapman v. AI Transp.,
229 F.3d 1012, 1024 (11th Cir. 2000) (en banc) (citations omitted).
At step one, Plaintiff must establish that (1) she was a member of a protected
class; (2) she applied and was qualified for a position for which the employer was
accepting applications; (3) despite her qualifications, she was not hired; and (4) the
position remained open or was filled by another person outside of her protected
class. EEOC v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1273 (11th Cir. 2002). 2

2
 The Board additionally argues that “the Court should also consider the very similar elements of a
prima facie case of a failure to promote case which are: (1) that the plaintiff belongs to a protected

8

Defendant concedes that “Nelson has provided that she is a member of a
protected class (race), she has proven that she was qualified to meet the minimum
requirements to apply for the position, she was not hired for the position, and the
position was filled by a person outside of her class who was promoted by the Board.”
(Doc. 37 at 11).

Therefore, the burden shifts to Defendant “to articulate a

legitimate, non-discriminatory reason for its actions.” McDonnell Douglas, 411 U.S.
at 804.

Defendant has asserted two allegedly legitimate non-discriminatory

reasons for hiring Brackin (1) that the two-person interview committee both
individually did not pick Plaintiff for the position and, in fact, unanimously selected
Brackin for the position, and (2) Brackin was more qualified based on job
experience. (Doc. 37 at 11). In support of these two non-discriminatory reasons,
Defendant has provided the Court with an affidavit of Savage, which states that (1)
there was a two person committee used to score the applicants who both selected
Brackin as the top scorer, (2) he considered both Brackin’s and Plaintiff’s previous
education and experience, and (3) he determined Brackin had more administrative
experience than Plaintiff, whose primary experience was within a classroom. (Doc.
38-1 at 56-60). Plaintiff does not appear to contest that Defendant has adequately
articulated legitimate non-discriminatory reasons for hiring Brackin. Instead, in
her response, Plaintiff simply states “[h]ere, the Defendant states the following as it
legitimate, non discriminatory reasons for Ms. Nelson’s rejection: the Defendant

class; (2) that she applied for and was qualified for a promotion; (3) that she was rejected despite her
qualifications; and (4) that other equally or less qualified employees outside her class were promoted.
Brown v. Ala.Dept. of Transportation, 597 F.3d 1160, 1174 (11th Cir. 2010). Either way, Plaintiff
has established a prima facie case.

9

alleges that Ms. Brackin was better qualified then [sic] Ms. Nelson.”3 (Doc. 43 at 5).
Plaintiff then recognizes that to avoid summary judgment, Plaintiff must show that
the proffered reasons are pretextual. (Id). Even if Plaintiff’s response is not meant
to concede that Defendant has met its burden, the undersigned finds that
Defendant’s burden has been met. See Bryant v. Dougherty Co. School System, 382
Fed. App. 914, 918 (11th Cir. 2010) (finding legitimate and non-discriminatory
reasons for the employment decision where Plaintiff was not recommended by the
interview committee and was not as qualified as a another candidate.) Thus, under
the framework, the burden shifts back to Plaintiff to show that the Board’s reasons
were pretextual.
2.

Pretext

“In order to avoid summary judgment, a plaintiff must produce sufficient
evidence for a reasonable fact finder to conclude that each of the employer's
proffered nondiscriminatory reasons is pretextual.” Chapman, 229 F.3d at 1037.
Plaintiff may show pretext by revealing the following:
[S]uch weaknesses, implausibilities, inconsistencies, incoherencies or
contradictions in [the Board’s] proffered legitimate reasons for its actions that
a reasonable factfinder could find them unworthy of credence.” Cooper v.

Plaintiff’s Response fails to address the other articulated legitimate, non-discriminatory reason
proffered by the Board, i.e., that Brackin was unanimously selected by the two-person committee. As
such, Plaintiff filed a Motion for Leave to file a Sur-reply (Doc. 46) to clarify her position and this
Court granted the same. Therein, Plaintiff indicates that Defendant’s Reply (Doc. 44) asserted that
Plaintiff did not address the second proffered reason provided by Defendant, that Brackin was more
qualified based on job experience. (Doc. 46-1). To that end, Plaintiff has clarified that “Plaintiff does
not see a difference here in an assessment of the candidates’ relative qualifications as being separate
and apart from a review of every aspect of their professional careers.” (Doc. 46-1 at 1). Plaintiff
additionally argues the neither of the two people who made up the two person committee provided
adequate notes as to why Plaintiff was scored lower than Brackin and that Brackin’s prior
experience was not “critical or essential to the successful performance of the contested position.”
(Doc. 46-1 at 2).

3

10

Southern Co., 390 F.3d 695, 725 (11th Cir. 2004), cert. denied, 546 U.S. 960,
126 S.Ct. 478, 163 L.Ed.2d 363 (2005) (quoting Combs v. Plantation Patterns,
106 F.3d 1519, 1538 (11th Cir. 1997)). However, a reason is not pretext for
discrimination “unless it is shown both that the reason was false, and that
discrimination was the real reason.” Brooks v. County Comm'n of Jefferson
County, 446 F.3d 1160, 1163 (11th Cir. 2006) (quoting St. Mary's Honor Ctr.,
509 U.S. at 515, 113 S.Ct. 2742). In the context of a promotion, “a plaintiff
cannot prove pretext by simply arguing or even by showing that he was
better qualified than the [person] who received the position he coveted. A
plaintiff must show not merely that the defendant's employment decisions
were mistaken but that they were in fact motivated by race.” Id. (citing
Alexander v. Fulton County, 207 F.3d 1303, 1339 (11th Cir. 2000)).
Furthermore, a plaintiff must show that the disparities between the
successful applicant's and his own qualifications were “of such weight and
significance that no reasonable person, in the exercise of impartial judgment,
could have chosen the candidate selected over the plaintiff.” Cooper, 390 F.3d
at 732 (citation omitted); see also Ash v. Tyson Foods, Inc., 546 U.S. 454, 126
S.Ct. 1195, 1197, 163 L.Ed.2d 1053 (2006) (approving of this language from
Cooper).
Springer v. Convergys Customer Management Group Inc., 509 F.3d 1344, 1348-49
(11th Cir. 2007). “If the proffered reason is one that might motivate a reasonable
employer, a plaintiff cannot recast the reason but must meet it head on and rebut
it.... Quarreling with that reason is not sufficient.” Wilson v. B/E Aerospace Inc.,
376 F.3d 1079, 1088 (11th Cir. 2004); see also Rioux v. City of Atlanta, Ga., 520 F.3d
1269, 1278 (11th Cir. 2008) (“It is the plaintiff's burden not merely to raise a
suspicion regarding an improper motive, but rather to demonstrate there is a
genuine issue of material fact that the employer's proffered reason ... was
pretextual.”). “The ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff remains at all times
with the plaintiff.” Springer, 509 F.3d at 1347. “If the plaintiff does not proffer
sufficient evidence to create a genuine issue of material fact regarding whether each

11

of the defendant employer's articulated reasons is pretextual, the employer is
entitled to summary judgment.” Chapman v. AI Transport, 229 F.3d 1012, 1024–25
(11th Cir. 2000) (en banc ).
In support of pretext, Plaintiff relies on the following facts: (1) Plaintiff
acquired the appropriate leadership certification nine years before applying for the
vacancy, while Brackin had “just” received her certification; (2) the Coordinator
position was vacant for almost a full 12 months before the position was announced
and filled, which Plaintiff asserts was to allow Brackin the opportunity to acquire
the necessary certification to qualify for the position; (3) the interview questions
were slanted in favor of Brackin; (4) Brackin was improperly allowed to use an
“alternate certificate” in order to serve as assistant principal in order to gain the
necessary experience required for the Coordinator position; and (5) Plaintiff was a
more qualified candidate. (Doc. 43 at 6-8).
In support of the alleged pretextual circumstances, Plaintiff cites to the
deposition of Savage on three occasions.4 Namely, the testimony, (1) that four
applicants were disqualified for not having the proper certification, (2) that Savage
had no explanation for the vacancy not listing prior to when it did, and (3) that
Plaintiff was allowed to use a temporary certificate in the year before the vacancy
for Coordinator was announced.

(Doc. 43 at 6; Doc. 42-1 at 16-25).

Plaintiff

additionally relies on her educational background and certifications to show that

Plaintiff did not file any exhibits with her second corrected Response (Doc. 47). Nevertheless, this
Court has reviewed and considered the exhibits filed with Plaintiff’s first Response and Plaintiff’s
Surrebuttal (Docs. 42, 46).

4

12

she was more qualified than Brackin. The undersigned will address each of the
allegedly pretextual circumstances raised by Plaintiff.
With respect to the leadership certification, Plaintiff does not contest that
Brackin’s certification met the requirement for the Coordinator position. (Doc. 38-2,
Nelson Deposition at 53, 77). Thus, Plaintiff’s assertion that she possessed her
certificate longer does not call into question the veracity of the Board’s two proffered
reasons for not hiring Plaintiff, such that the length of time that Plaintiff held her
certificate is evidence of pretext.

The same holds true for Plaintiff’s second

assertion in support of pretext, i.e., the fact that the Coordinator position went
unannounced for almost a year. Plaintiff offers no facts to show that the position
went unannounced to allow Brackin to get the necessary certification for the
position.

Further, even giving credence to the conclusory presumption that the

Board left the vacancy unfilled so that Brackin could get certification, Plaintiff has
not provided any evidence that such an act contradicts or shows weakness in the
Board’s proffered legitimate reasons for hiring Brackin, i.e., that she had more
experience and was unanimously selected for the position. Plaintiff’s assertion that
the interview questions were slanted in favor of Brackin is equally unsupported and
fails to show pretext.

Plaintiff failed to cite to the record or offer any facts to

support such a claim and fails to identify which questions were allegedly slanted,
why they were allegedly slanted, how the allegedly slanted questions were
beneficial to Brackin, or why the allegedly slanted questions were not pertinent to
the position such that a person could reasonably infer that the allegedly tailored

13

questions were pretextual. Rather, Plaintiff testified that the interview process was
“questionable”. (Doc. 38-2 at 74). Such an opinion, even if true, fails to negate the
Board’s proffered legitimate reasons for hiring Brackin.
The fourth circumstance on which Plaintiff relies to show that the Board’s
proffered reasons for hiring Brackin were pretextual is that Brackin was given an
advantage. Specifically, that Brackin was allowed to use an alternate certificate to
serve as assistant principal, a position that was considered as past experience when
Brackin applied for the Coordinator position. Plaintiff points to no authority that
would suggest this allowance was not permitted. To the contrary, Plaintiff
acknowledged that people within the school system used alternative certificates,
and testified that “a lot of people do a lot of things for which they are not certified,
but those aren’t allowed to be credentials on their resumes or applications.” (Doc.
38-2 at 73). Plaintiff offers no factual support for her belief that the non-certified
experience should not be considered on a resume. Moreover, the record reflects that
an alternative certificate is issued by the State of Alabama and was acceptable for
the assistant principal position. (Doc. 38-3 at 3; Doc. 42-1at 7). As a result, there is
no evidence that Brackin was given an unfair advantage as Plaintiff asserts or,
more notably, that the allegedly unfair advantage is substantive evidence of
pretext.
The final assertion Plaintiff makes to show pretext is that she was clearly
more qualified than Brackin; so much so, that a reasonable person would not select
Brackin over her. Plaintiff cannot prove pretext by merely asserting that she was

14

better qualified than the person who received the position at issue. Alexander v.
Fulton County, 207 F.3d 1303, 1339 (11th Cir. 2000)(overruled on other grounds).
Instead, Plaintiff must present evidence that the disparity in qualifications was “so
apparent as virtually to jump off the page and slap you in the face.” Cofield v.
Goldkist, Inc., 267 F.3d 1264, 1268 (11th Cir. 2001) (citing Denney v. City of Albany,
247 F.3d 1172, 1187 (11th Cir. 2001) (quoting Lee v. GTE Fla., Inc., 226 F.3d 1249,
1253 (11th Cir. 2000); accord Alexander v. Fulton County, Ga., 207 F.3d 1303, 1340
(11th. Cir.2000) (all quoting Deines v. Texas Dep't of Protective & Reg. Servs., 164
F.3d 277, 280 (5th Cir. 1999)). For the discrepancies to “jump off the page and slap
you in the face,” they must be of such weight and significance that no reasonable
person could have chosen Brackin over Plaintiff. Lee, 226 F.3d at 1254.
In support of her position that she was more qualified, Plaintiff points to her
significant educational background and multiple certifications. (Doc. 43 at 8-9).
However, the record also reflects that Brackin had the necessary educational
requirements and certifications for the position. (Doc. 38-1 at 19). Additionally,
Brackin had significant administrative experience including, but not limited to,
being in charge of the Continuance Improvement Plan, the Migrant Plan, the Rule
of Schools Plan, Title VI Needs Assessment, and Curriculum Building and
Monitoring while at Leroy High School 2013-2015, and being the Federal Programs
liaison at Leroy High School, and the Assistant Technology Coordinator for the
Washington County School System. (Doc. 38-1 at 19, 29; Doc. 44 at 7). Brackin also
had experience with the Electronic Grant Application program and managed

15

multiple projects. (Doc. 38-1 at 19-21). In contrast, Savage determined that while
Plaintiff had impressive education and certification, she did not have a significant
amount of administrative experience and that most of her experience had been in
classroom teaching. (Id.) Plaintiff does not rebut the assertion that she has mostly
classroom experience and testified that she was unaware of several of Brackin’s
qualifications.

(Doc. 38-2 at 10, 17-20).

Plaintiff, however, argues that the

experience Brackin had was not essential to the successful performance of the
Coordinator position and, therefore, she remained far more qualified. (Doc. 46-1).
While Plaintiff may disagree that Brackin’s experience was necessary, quarreling
with the proffered reason is not sufficient. See Wilson, 376 F.3d at 1088. Based on
the respective qualifications of both Plaintiff and Brackin, it is not apparent that
Plaintiff’s qualifications were so superior to Brackin’s that no reasonable person
could have selected Brackin over Plaintiff.
Even assuming that each of the circumstances pointed out by Plaintiff were
true and that, either separately or as a whole, these circumstances show that the
Board was biased toward Brackin, Plaintiff still fails to establish, as she must, that
the circumstances were a mask for racial discrimination. In fact, beyond Plaintiff’s
naked belief, Plaintiff has not provided any evidence that any of the Board’s actions
were related to, much less dependent upon her race. See Brooks, 446 F.3d at 1160
(“a reason is not pretext for discrimination ‘unless it is shown both that the reason
was false, and that discrimination was the real reason.) (quoting St. Mary’s Honor
Ctr., 509 U.S. at 515, 113 S.Ct. 2742); see also Denney, 247 F.3d at 1185 (“Absent

16

evidence that subjective hiring criteria were used as a mask for discrimination, the
fact that an employer based a hiring or promotion decision on purely subjective
criteria will rarely, if ever, prove pretext ....”).
In the last analysis, Plaintiff has not presented any facts showing that the
hiring process was racially motivated, or that the Board’s proffered legitimate, nondiscriminatory reasons for hiring Brackin were pretext for race discrimination.
Instead, Plaintiff has only suggested, without factual support from the record or
case law that “a reasonable person could very easily question the motives of
Defendant and the fairness of the process.”

(Doc. 43 at 9).

Speculation and

conjecture as to Defendant’s motives is not substantial or probative evidence of
pretextual conduct. See Rioux, 520 F.3d at 1278. As such, for the reasons set forth
above, the circumstances set forth by Plaintiff to show pretext do not establish, as
they must, a question of material fact as to whether the Board’s proffered legitimate
reasons were false or insufficient. See Chapman, 229 F.3d at 1024-25. Moreover,
even if Plaintiff properly showed that the Board’s proffered reasons were false or
insufficient, which she has not, she has still failed to present any probative evidence
that the true reason that Plaintiff was not selected as Coordinator was based on
race, so as to overcome summary judgment. Accordingly, the Board’s Motion for
Summary Judgment as to Plaintiff’s racial discrimination claim is granted.
B.

Retaliation

To properly state a prima facie case for a Title VII or § 1981 retaliation claim,
Plaintiff must show that: (1) she engaged in a statutorily protected activity; (2) she

17

suffered an adverse employment action; and (3) she established a causal link
between the protected activity and the adverse action. Bryant v. Jones, 575 F.3d
1281, 1307–08 (11th Cir. 2009), cert. denied, 559 U.S. 940, 130 S.Ct. 1536, 176
L.Ed.2d 115 (2010).
Defendant asserts that Plaintiff’s retaliation claim5 is subject to dismissal
because Plaintiff cannot show an adverse employment action or causal link between
the protected activity and the adverse action.

(Doc. 37 at 16).

In support of

dismissal, Defendant has submitted an affidavit of Savage which states both that
Plaintiff did not apply for the subject principal position and that Defendant had no
knowledge of the EEOC racial discrimination charge at the time the principal
position was filled. (Doc. 38-3 at 2-3). In response, Plaintiff states “[t]he Defendant
has filed a motion for summary judgment contending that it is entitled to judgment
as a matter of law because the Plaintiff, Ms. Hunter [sic], cannot meet her burden of
proof with regards to her claims of discrimination and retaliation. Plaintiff concedes
that Defendant may not have been aware of her EEO [sic] activity at the time of the
second job rejection.” (Doc. 43 at 1). Nowhere else in Plaintiff’s response does she
mention a retaliation claim or attempt to argue that it should not be dismissed. (See
Doc. 43, generally). The undersigned interprets Plaintiff’s above referenced

Defendant initially points out that Plaintiff has failed to properly plead a retaliation claim in this
action, as evidenced by Plaintiff’s Response to Defendant’s Motion for More Definite Statement
wherein Plaintiff stated “[t]here is a Title VII retaliation claim pending at the EEOC […] which
Plaintiff expects to add by amendment once a Notice of Rights is received on that Charge […] at this
point, there is no Title VII retaliation claim mentioned in the Complaint in this case, and there is no
obligation on Plaintiff’s part to submit a Notice of Rights for a claim that is not in her Complaint.”
(Doc. 15 at 2). The record reflects that to-date, Plaintiff has not again amended her Complaint or
submitted a Notice of Rights to Sue with regard to the retaliation claim. Nevertheless, because the
current Complaint (Doc. 18) indicates that Plaintiff was retaliated against in Count III, Defendant’s
Motion encompasses Plaintiff’s retaliation claim regardless of whether it has been properly pled.

5

18

statement and lack of argument to the contrary, to concede that summary judgment
is due to be granted.

Regardless, it is clear that Plaintiff has wholly failed to

establish, or even attempt to establish a question of material fact as to the second
and third elements of a retaliation claim, an adverse action or causal connection
between an adverse action and a protected activity.

Accordingly, summary

judgment as to Plaintiff’s retaliation claim is due to be granted.
CONCLUSION
For the reasons set forth herein above, Defendant’s Motion for Summary
Judgment is granted and this action is dismissed pursuant to Rule 56(c) as there
are no genuine issues of material fact for a jury to consider.
DONE and ORDERED this the 14th day of April, 2017.

/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

19