Simon-Leonard v. Pasco County School Board
Filing
43
ORDER granting 17 Motion for summary judgment and Defendant's Motion to Strike (Doc. 28). The Clerk is directed to enter judgment in favor of Defendant, Pasco County School Board, and against Plaintiff, Buffey Simon-Leonard. The Clerk is further directed to terminate all pending motions and deadlines and close this file. Signed by Judge Charlene Edwards Honeywell on 9/29/2017. (CDW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BUFFEY SIMON-LEONARD,
Plaintiff,
v.
Case No: 8:15-cv-2655-T-36JSS
PASCO COUNTY SCHOOL BOARD,
Defendant.
___________________________________/
ORDER
This matter comes before the Court upon Defendant Pasco County School Board’s
(“School Board”) Motion for Summary Judgment (Doc. 17). In the motion, Defendant argues that
Plaintiff has failed to identify: (1) direct evidence of pregnancy discrimination; (2) a true
comparator to use in her attempt to prove discrimination based on circumstantial evidence; (3)
sufficient circumstantial evidence to establish a prima facie case without a comparator; (4) a causal
connection between Plaintiff’s protected activity and any alleged adverse action; and/or (5) any
evidence or basis for concluding that the School Board’s actions or offered explanations for any
actions were a pretext for unlawful conduct. Plaintiff responded in opposition (“response in
opposition”) (Doc. 24), to which Defendant replied (Doc. 26). In addition, the School Board filed
a Motion to Strike Plaintiff’s Untimely Filed Exhibits (Doc. 28), to which Plaintiff did not file a
response. The Court, having considered the parties’ submissions, including depositions,
declarations, and exhibits, and being fully advised in the premises will now grant Defendant’s
Motion for Summary Judgment and grant Defendant’s Motion to Strike.
I.
BACKGROUND AND STATEMENT OF FACTS 1
This action arises from allegations that Plaintiff suffered sex/pregnancy discrimination in
violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Florida Civil Rights Act
(“FCRA”) and retaliation in violation of the same statues. Plaintiff started her employment with
the Pasco County School Board in 1998 as a substitute teacher, and she then worked as a Varying
Exceptionalities (“VE”) teacher until her promotion to Assistant Principal (“AP”) at Hudson
Middle School (“HMS”) at the start of the 2006/2007 school year. 2 Doc. 18; Ex. 1, Pl. Deposition
(“Pl.”) at 30:25-31:5.
Plaintiff’s First Principal Steve Van Gorden
In 2006, Steve Van Gorden was the principal of HMS and recommended Plaintiff for the
AP position for the 2006/2007 school year. Doc. 19; Ex. 36, Tiede Declaration (“Tiede Dec.”)
¶4. Then-Assistant Superintendent of Middle Schools Tina Tiede provided supervisory support
to a subset of schools, including HMS. Doc. 19; Ex. 36, Tiede Dec. ¶¶1, 2, 3. Tiede and Van
Gorden had regular discussions regarding Plaintiff’s performance, and thereafter, Tiede began
scheduling regular meetings at HMS. Tiede Dec. ¶4.
On November 11, 2007, Tiede and Van Gorden had a meeting with Plaintiff to review a
number of problems with her performance. Pl. at 32:3-24; Doc. 18; Reprimand Ltr., Ex. 3. The
meeting topics included Plaintiff’s work ethic, honesty, commitment to her job, and
communication, among other concerns. Pl. at 33:7-15; Ex. 3; Tiede Dec. ¶5. In particular, Tiede
and Van Gorden spoke with Plaintiff about an incident where she failed to return to HMS after a
1
The Court has determined the facts, which are undisputed unless otherwise noted, based on the parties’
submissions, including stipulated facts, declarations, exhibits, and deposition testimony.
2
APs are contracted for a certain number of days (e.g., 245, 230, 216). Pl. at 60:5-11; Doc. 19; Ex. 27, Holback
Deposition (“Holback”) at 25:17-21. Barbara Marshall held the 245-day position at HMS; Plaintiff held the 230-day
contract (meaning that she did not work over the summers). Pl. at 59:7-60:4.
2
half-day off-site meeting and then lied about her whereabouts. 3 Doc. 18; Exs. 2, 3; Tiede Dec.
¶5; Ex. 30, Van Gorden Deposition (“Van Gorden”) at 9:9-21. Plaintiff acknowledged that as of
November 19, 2007, she understood that both Tiede and Van Gorden had concerns about her
performance. Pl. at 35:17-20. Overall, Van Gorden describes Plaintiff as having “potential,” but
identified Plaintiff’s commitment to putting the time needed into the job of Administrator and
honesty as his main areas of concern. Van Gorden at 8:10-20, 9:2-8.
Plaintiff’s Second Principal Phillip Kupczyk
At the end of the 2008/2009 school year, Van Gorden transferred and Phillip Kupczyk
became the Principal. Pl. at 43:12-14; Doc. 19; Ex. 28, Kupczyk Deposition (“Kupczyk”) at
6:20-25. Kupczyk described the professional relationship with Plaintiff as “average.” Kupczyk at
16:13-14. Kupczyk felt Plaintiff lacked leadership qualities, including the ability to be a selfstarter. Kupczyk at 9:25-10:12; Kupczyk Dec. ¶2; Tiede Dec. ¶9. For example, within Kupczyk’s
first few days at HMS, he was instructed to reduce one of two Exceptional Student Education
(“ESE”) teachers who had equal seniority. Kupczyk at 11:2-12:12; Kupczyk Dec. ¶4. Kupczyk
did not know either teacher yet, so he solicited input from Plaintiff (who oversaw ESE and had
been at HMS for three years), and she responded, “I’d rather not say which one. That’s why you
get paid the big bucks, to make those decisions.” 4 Kupczyk at 10:18-11:4, 12:5-7; Kupczyk Dec.
¶4. Kupczyk also did not feel supported by Plaintiff, as he received direct reports from a number
of teachers that Plaintiff actively undermined him by telling the staff they did not need to support
his initiatives. Kupczyk at 12:13-13:8; Kupczyk Dec. ¶5; Tiede Dec. ¶9. Kupczyk and Tiede
3
On November 29, 2007, Van Gorden issued Plaintiff a Formal Reprimand for this incident. See Pl. at 35:24-36:7;
Doc. 18, Ex. 3; Doc. 29 ¶ 8.
4
Kupczyk was later able to observe both ESE teachers, and one was obviously superior. Kupczyk Dec. ¶4. In
Kupczyk’s opinion, Plaintiff could have easily identified the appropriate teacher to be reduced, but Kupczyk
believes she refused to do so because she did not want to take responsibility for the decision or be disliked by the
teachers. Id.
3
spoke regularly during the school year, and he shared concerns about Plaintiff. Kupczyk at
10:23-11:1; Kupczyk Dec. ¶6; Tiede Dec. ¶9. Tiede encouraged Kupczyk to try and stay positive
during his first year and work to build bridges with his new staff. Kupczyk at 13:9-14; Tiede
Dec. ¶10.
Tiede Plans to Transfer Plaintiff
As the 2009/2010 school year drew to a close, Tiede decided to transfer Plaintiff out of
HMS due to her continued poor performance and failure to improve. Kupczyk Dec. ¶7; Tiede
Dec. ¶11. However, before Tiede could meet with Plaintiff to communicate the decision,
Plaintiff left work due to complications with her first pregnancy. Id. Tiede chose to forego the
disciplinary transfer at that time. Kupczyk Dec. ¶7; Tiede Dec. ¶11.
Plaintiff’s Third Principal Terry Holback
Kupczyk voluntarily stepped down at the end of the 2009/2010 school year due to health
issues (Kupczyk at 7:1-10; Kupczyk Dec. ¶8), and Terry Holback replaced him. Holback Dec.
¶2. Plaintiff’s first child was born May 29, 2010, and she returned to HMS in August 2010. Pl. at
19:10-14, 44:17-45:8.
Tiede Meeting with Plaintiff on August 22, 2010
On August 22, 2010, Tiede met with Plaintiff at HMS to discuss her performance to date,
along with expectations for going forward. Pl. at 45:10-23; Tiede at 19:25-21:2; Tiede Dec. ¶12;
Ex. 5. Tiede invited Holback to attend. Holback at 20:7-21; Doc. 19; Ex. 33, Holback Dec. ¶3;
Tiede Dec. ¶12. Tiede specifically spoke with Plaintiff about the fact that both of her prior
Principals shared similar types of complaints about her performance which Tiede believed
indicated that Plaintiff was not improving. Tiede Dec. ¶12.;Holback at 21:5-25; Holback Dec.
4
¶3. At that meeting, Plaintiff understood that Tiede was concerned about her performance (Pl. at
48:13-17), and that her performance would be monitored going forward. Pl. at 45:14-18.
As Holback’s first year progressed, Holback started to have some concerns about
Plaintiff’s performance, specifically her leadership, which she discussed with Tiede. Holback at
35:21-36:2; Holback Dec. ¶6; Tiede at 21:3-16; Tiede Dec. ¶¶12, 13. During the 2010/2011
school year, Assistant Principal of HMS Barbara Marshall, who held the 245-day position,
announced her intent to retire in November 2012. Holback Dec. ¶7. Plaintiff spoke with Holback
on a number of occasions about the 245- day position. Pl. at 59:7-21; Holback Dec. ¶7. Holback
informed Plaintiff that she relied more heavily on the 245-day AP, as they were typically more
experienced (as held true at HMS), and on some days, “it may feel like a 24/7 job.” Holback
Dec. ¶7. Holback wanted Plaintiff to understand that the position was not just an increase in
contracted days, but also in responsibility. Id.
In July 2011, Beth Brown became the Executive Director of Secondary Schools,
reporting to Tiede. Doc. 19; Ex. 31, Brown Declaration ¶3. Tiede and Brown reconfigured
supervisory responsibility for the schools, and Brown took over HMS. Brown Dec. ¶3. Brown
and Tiede reviewed and discussed all of the schools in the District, and they identified five
Administrators that were of “significant concern[],” one of which was Plaintiff. Brown at 21:1125, 23:1-25; Brown Dec. ¶4; Tiede Dec. ¶14. Brown visited her schools at the start of the
2011/2012 school year, and when she met with Holback, they discussed Plaintiff’s challenges to
date. Brown at 22:19-25; Brown Dec. ¶5; Holback Dec. ¶8.
In particular, on August 10, 2011, Holback discussed with Plaintiff the expectations of
the 245-day position, a higher level administrative position that would become available in
November 2012. Doc. 2 ¶14. Holback explained that the position requires round-the-clock
5
availability, even mentioning that she regularly contacts the current 245 AP during vacations and
after school hours. Id. At that time, Plaintiff expressed to Holback her interest in becoming a
principal in the future, and that she would like to add to her family. Id. Plaintiff did not have set
hours (absent the obvious expectation that she be there with the students) and was expected to
exercise her professional judgment on how to get her work done. Holback at 27:20-24, 31:2-18;
Holback Dec. ¶9.
Pregnancy Inquiry by Principal Holback 5
On September 15, 2011, Holback asked Plaintiff to step out of a candidate interview. Pl.
at 77:22-78:4; Holback Dec. ¶34. Once in Plaintiff’s office, Holback asked her if she was
pregnant. Pl. at 77:22-78:14, 168:16-21. Holback’s question was prompted by staff asking her if
Plaintiff was pregnant. Holback at 37:2-22; Holback Dec. ¶34. Plaintiff told her “no,” and claims
Holback then asked if she was trying, to which she responded she planned to have another child
in August. Pl. at 78:6-14. Plaintiff claims she told Brown about the Holback conversation during
their December 5 meeting. 6 Pl. at 127:21-128:5. Plaintiff did not use the word “discrimination”
when talking to Brown, nor did she allege disparate treatment (Pl. at 127:21-128:1) and Brown
did not perceive the discussion as a discrimination complaint. Brown Dec. ¶24. 7 Plaintiff
believes Holback began discriminating against her after that conversation because she did not
want to lose an Administrator to medical leave down the road. 8 Pl. at 80:14-21. Plaintiff stated
the following:
5
While the parties disagree as to the timing and exact details of the discussion, both agree a conversation occurred.
Brown thinks she learned of the Holback conversation during the spring. Brown Dec. ¶13.
7
Brown believes the Holback conversation was appropriate, and the fact it concerned Plaintiff’s rumored
pregnancy irrelevant. According to Brown, if a Principal hears a rumor from staff that one of her APs is going to be
leaving, no matter what the reason, the Principal should investigate and talk to the AP about it so if the rumor is true,
the school can plan for it. Brown Dec. ¶13; Brown at 34:7-35:8.
8
Coverage for Administrator leave is reviewed on a case-by-case basis, and the District will place an “AP on
Assignment” at a school to cover for an absence where appropriate. Brown Dec. ¶14.
6
6
Q: And why do you think this was [disparate treatment] because you were
planning to have a child and ultimately became pregnant?
A: Yes.
Q: But why do you think that?
A: Barb Marshall was retiring in November and Ms. Holback knew that if I was
pregnant and leave at the same time, she would be down two assistant principals.
Q: So this is simply a timing issue []?
A: Yes.
Q: And that’s the only reason you think this treatment was due to the fact you
were planning to have a child and ultimately became pregnant?
A: Yes.
Pl. at 219:8-24.
First Notice of Performance Concerns
On September 20, 2011, at 7:00 p.m., Plaintiff approached Holback at a school event and
told her she was going to leave work the next morning in order to meet an alarm company at her
house. Pl. at 50:4-51:2; Doc. 18, Ex. 4. Holback asked Plaintiff to meet her the next morning
before she left, which did not happen. Holback Dec. ¶¶10, 11. Holback was concerned that, inter
alia, Plaintiff scheduled a non-emergency personal appointment during the school day, gave only
15 hours’ notice, disregarded her mandatory work meeting, and did not meet with her prior to
leaving that morning. Doc. 18, Ex. 4; Holback Dec. ¶¶10, 11. Plaintiff agreed that Holback’s
request for advance notice of her intent to be absent was “absolutely” fair. Pl. at 54:19-55:7.
Holback met with Plaintiff later in the day on September 21, at which time Plaintiff asked
Holback to ask other Principals about what they expected from their APs. Pl. at 56:6-58:15.
Holback did as Plaintiff asked, and she spoke with Brown and five other Principals who agreed
with Holback’s expectations. Brown Dec. ¶6; Holback Dec. ¶13. Holback met with Plaintiff the
next day and told her that she spoke with other Principals and they confirmed her expectations
were in line with their own. Pl. at 58:16-59:6, Ex. 5; Holback Dec. ¶14. Thereafter, Plaintiff
received from Holback, the job description for the AP position (Ex. 6), 9 along with the Florida
9
The description notes “extended hours beyond the regular school day may be frequently required.” Pl. Ex. 6.
7
Multidimensional Leadership Assessment (“FMLA”) Matrix. Pl. at 62:7-11, 21-63:19-20, Ex. 5;
Holback Dec. ¶14. Finally, Holback informed Plaintiff that per her request, weekly
administrative meetings would be scheduled for Mondays from 3:00-5:00. Ex. 5; Brown Dec. ¶6;
Holback at 32:10-33:2, 33:5-8; Holback Dec. ¶14.
Brown Warns Plaintiff About Non-reappointment
On November 9, 2011, Holback notified Plaintiff that Brown would be meeting with
them on December 5. Pl. at 64:9-15, Ex. 7. On December 5, Brown, Holback and Plaintiff met at
HMS, and Brown summarized the meeting in a formal correspondence which Plaintiff agrees is a
“pretty close” description of what happened. Pl. at 65:6-66:1, Ex. 11. Brown assigned Dimension
5.0 (Communication) on the FMLA Matrix to Plaintiff, so she could be evaluated throughout the
year on it, and specifically, on the sub-dimension of whether “the leader actively listens and
analyzes input and feedback,” where Brown scored Plaintiff as “unsatisfactory.” Ex. 11; Brown
Dec. ¶8. In her correspondence, Brown warned Plaintiff that if her “performance does not
improve, I will recommend to the Superintendent that your contract not be renewed at the close
of this school year.” Pl. at 73:12-17, Ex. 11. On January 28, 2012, follow-up meetings with
Brown were scheduled for 2/23, 3/22, 4/26 and 5/24. Doc. 18; Ex. 9. Brown and Holback met
with Plaintiff on March 22 as scheduled. Pl. at 107:25-108:7, Ex. 14; Holback Dec. ¶20 attached
Ex. D. Plaintiff admits that as of March, she “didn’t go out of my way to be friendly” with
Holback or Marshall and only communicated with Holback via e-mail. Pl. at 234:7-236:1, 236:913.
In March 2012, Holback assigned Plaintiff FCAT testing. Pl. at 216:3-9, 218:2-4;
Holback Dec ¶21; Holback at 48:4-18. Marshall helped train Plaintiff. Pl. at 216:16-18, 217:8-
8
12; Holback Dec. ¶21. The 245-day AP typically ran FCAT. However, Plaintiff viewed this
assignment as a punishment. Pl. at 76:13-77:10. In late March, after FCAT testing concluded,
Plaintiff told Holback she was pregnant with her second child. Pl. at 191:16-21.
Second Notice of Performance Concerns
On April 26, 2012, Holback issued Plaintiff a conference summary to document their
conversation that day; the information was formalized into a Second Notice of Performance
Concerns dated May 4. Pl. at 97:5-18, Ex. 11, 14; Holback Dec. ¶25 attached Ex. E. In addition
to reviewing the fact that Plaintiff was at lunch during a scheduled conference call, Holback
expressed her serious concerns about her oversight of the Emotionally and Behaviorally Disabled
(“EBD”) unit. Pl. at 97:19-98:25, Ex. 11; Holback Dec. ¶¶22-25. Plaintiff admittedly approved
lesson plans for the EBD classroom that were deficient in a number of critical respects. Pl. at
98:15-100:18; Ex. 11; Holback Dec. ¶22. Plaintiff also admits that the movies and violent video
games that had been in the classroom were inappropriate, but contends that she did not know
about them until Holback told her. Pl. at 101:3-9; Holback Dec. ¶25.
The Second Notice also concerned Plaintiff’s decision to place a student that was a
behavioral problem (six referrals) in the office as a helper. Ex. 11; Holback Dec. ¶23. Plaintiff’s
decision violated Florida Department of Education guidelines because the student was below
grade level, and Plaintiff removed her from two periods of Read 180. Pl. at 102:7-104:14, Ex.
11; Brown Dec. ¶11; Holback Dec. ¶23. Although Plaintiff made the decision in conjunction
with non-administrative staff members, she was the only one with authority to make the decision,
which she admits. Pl. at 104:1-14; Brown Dec. ¶11; Holback Dec. ¶25. The Second Notice
attributes this statement to Plaintiff:
It doesn’t matter what I do because it will never please you. You are on a witchhunt and looking for things to use against me. You are purposely overloading me
9
with work so that I cannot get everything accomplished. You have never liked me
and just want to get me fired.”
Ex. 11. Plaintiff admits she “might have said something to that effect.” Pl. at 104:15-25.
Third Notice of Performance Concerns
The Third Notice involved Plaintiff’s poor organization of HMS’s athletic banquet on
May 17, 2012. Doc. 18; Ex. 16. Because Plaintiff said the banquet was ready to go, Holback
voluntarily offered to cover it for her. Pl. at 108:23-109:7, 111:12-23, Ex.15, 16; Holback Dec.
¶26. There were numerous problems with the banquet, including Plaintiff’s failure to provide
seating assignments until just before the event, students mislabeled or left out of the Program,
and no certificates for the girls’ basketball team, which made some parents upset. Pl. at 109:9110:21, 111:24-113:10, Pl. Ex. 16; Holback at 45:20-46:20; Holback Dec. ¶27. Plaintiff admits
she could have done a better job. Pl. at 113:3-10, 244:10-13. That same day, Plaintiff verbally
notified Holback and Marshall that she would need to have her workweek restricted to 40 hours
per week because she was getting swollen from her pregnancy. Pl. at 113:14-114:8; Pl. Ex. 17.
Holback expressed concern because Plaintiff was scheduled to chaperone Saturday night’s Grad
Night field trip to Orlando and offered to have somebody else cover it. Pl. at 117:10-117:16,
118:2-10; Holback Dec. ¶29. Of her own choosing, Plaintiff attended Grad night, despite the
work restrictions. Pl. at 116:1-18.
Plaintiff’s May 21, 2012 meeting
On May, 21, 2012 10, Brown, Holback, and Plaintiff held another regularly scheduled
meeting. Pl. at 120:20-121:2, Pl. Ex. 18; Brown Dec. ¶16; Holback Dec. ¶31. During the
meeting, Plaintiff stated that she “had no idea” how to improve her relationship with Holback,
10
While the original date for this meeting had been 5/24, it was rescheduled to 5/21 sometime before 5/16. Holback
Dec. 30 attached Ex. G.
10
and stated that Brown did not listen to her and routinely sided with Holback. Pl. at 123:23-125:9;
Brown Dec. ¶17; Holback Dec. ¶31. Thereafter, Plaintiff disagreed with Holback’s version of
events to which Brown asked “are you calling her a liar?” and Plaintiff responded “well, if that’s
the way she was told and that’s the way she believes, then I guess.” 11 Pl. at 123:23-124:14;
Brown Dec. ¶18; Holback Dec. ¶31. Brown ended the meeting early. Brown Dec. ¶18; Brown at
40:12-41:14. In Brown’s opinion, Plaintiff’s attitude had become so negative and her work
performance so poor, the HMS Administrative team could not operate effectively, and in turn,
the school was going to suffer. Brown Dec. ¶19; see also Brown at 40:12-41:14.
Plaintiff is Reassigned to District Office and Her Appointment is Not Renewed
Brown immediately met with Tiede to discuss what had happened during the May
meeting. 12 Brown at 40:12-41:14; Tiede at 23:20-24:10. Brown recommended removing
Plaintiff from HMS immediately and that her contract not be renewed; Tiede agreed, as did thenSuperintendent Fiorentino. Ex. 18; Brown at 40:6-11, 50:16-22; Brown Dec. ¶19; Tiede at
23:8-24:19; Tiede Dec. ¶¶15,16. Brown and Tiede did not confer with, or seek input from,
Holback with respect to either decision. Brown Dec. ¶19; Holback at 57:18-58:10, 59:1760:1.
On May 22, 2012, Plaintiff met with Brown and Tiede at the District Office, and Brown
informed her that she would be transferred to the ESE Department at the District Office for the
remainder of her contract, she would not be reappointed once it expired, and she would instead
be placed in an instructional position. 13 Pl. at 125:10-126:4, 131:20-23, 134:4-7, 177:17-23;
11
Plaintiff feels that this was taken out of context. Pl. 124:8-9.
Brown had kept Tiede apprised of her efforts with Plaintiff throughout the school year. Brown Dec. ¶19; Tiede
Dec. ¶15.
13
The District’s policy for Re-assignments of Administrators (No. 1130.01) states that “administrators may be
reassigned to any position for which they are qualified in order to meet the needs of the Board.” Kuhn Declaration at
¶6, attached Ex. F.
12
11
Brown Dec. ¶20; Tiede Dec. ¶17; see also Ex. 18. Plaintiff reported to the ESE Department at
the District Office for the remainder of her contract. Pl. at 131:23-132:9, 133:21-134:3. There
was no change in title, pay or benefits. Pl. at 140:10, 177:2-6; Brown Dec. ¶20. The work 14 she
was assigned was taken directly from other Supervisors in the Department. Brown Dec. ¶20.
From this point forward, Plaintiff did not have any additional significant interaction with Brown,
Holback or Tiede. Pl. at 132:12-20.
Plaintiff is Not Selected for Lateral Positions/Removed from Pool:
For the 2012/2013 school year, Plaintiff was assigned to River Ridge Middle School as a
VE teacher. Pl. at 134:13-135:3. In June 2012, Plaintiff applied for a VE and/or support
facilitation position 15 at Land O’Lakes High School (a lateral move) and learned that she did not
get the position on or around June 25, 2012. 16 Pl. at 136:22-137:4, 140:4-17, 285:5-12, Doc. 18;
Ex. 20. Plaintiff also applied for two or three Virtual Education positions between December
2013 and March 2014 which were also lateral moves that she did not get. Pl. at 151:1-5, 151:1314,152:18-24, Doc. 18; Ex. 22, 23.
In July 2012, Plaintiff was informed that as a result of the performance concerns that led
to her non-reappointment, she was removed from the Assistant Principal Pool and would be
eligible to reapply starting with the 2014/2015 school year. Doc. 18; Ex. 21; Brown at 8:9-25;
Brown Dec ¶22; Tiede at 24:20-25:15; Tiede Dec. ¶19. Plaintiff believes this is an example of
discrimination. Pl. at 135:19-136:10. Plaintiff is not aware of any AP that returned to the AP
pool after being removed from the position for performance. Pl. at 144:25-145:7. Once eligible,
14
Plaintiff did not like the reassignment. Pl. at 177:7-9.
Plaintiff claims that there were two positions (VE/EBD English teacher and support facilitation). Pl. at 138:9139:2.
16
Plaintiff identified three potentially successful candidates for the two positions she claims at are issue. Pl. at
140:18-23.
15
12
Plaintiff applied for the pool in April 2014. Pl. at 153:15-19, 213:17-25. Following a blind
scoring process, Plaintiff’s application ranked 41 out of 48 applicants, and she did not make the
pool. Doc. 19-7; Ex. 32, Joel Di Vincent Dec. ¶5. Plaintiff believes this was discrimination. Pl. at
154:25-155:13, 282:23-283:3.
School Board Policies
The School Board has policies in place that prohibit discrimination and retaliation, along
with a complaint procedure, and Administrators can also register a complaint with Employee
Relations, any Assistant Superintendent, or the Superintendent. Kuhn Declaration (“Kuhn Dec.”)
at ¶5 attached Ex. E; Tiede at 22:18-25. Plaintiff is aware of and knows how to find the policies.
Pl. at 160:20-161:1; 161:7-11. Other than talking to Brown about the Holback conversation,
Plaintiff admits she “didn’t try” to complain about her claim of discrimination to Employee
Relations, 17 any Assistant Superintendent, the Superintendent or any other supervisor or
manager; she did discuss it with teachers at HMS. Pl. at 126:9-22, 127:18-129:3, 129:19-130:20.
Plaintiff did not raise any allegation of discrimination during the May 22nd meeting when she
was told she would be transferred and not renewed. Pl. at 126:1-12.
Plaintiff’s First Charge:
On May 18, 2012, the School Board received a Notice of Charge of Discrimination from
the EEOC (“Notice”) for Charge No. 846-2012-48965. Kuhn Dec. ¶3; Doc. 19-9, p. 5. The
Notice indicated that Plaintiff had filed a charge, but it did not include the charge itself, and it
stated, “no action is required at this time.” Id. On May 29, 2012, the School Board received
another Notice (Doc. 19-9, p. 6), this one dated May 23, and this time, it included a charge of
17
Plaintiff never made a report to Employee Relations because she “didn’t feel comfortable,” even though she did
not know anybody that had ever made a report to Employee Relations, and her opinion was based only on “things
[she had] heard.” Pl. at 127:18-129:3.
13
discrimination signed by Plaintiff on May 20, 2012 (“the First Charge”). Kuhn Dec. ¶3 attached
Ex. B. In the First Charge, Plaintiff alleges that she was discriminated against on the basis of sex
(female), in violation of Title VII of the Civil Rights Act. Doc 19-9, p. 7.
Plaintiff’s Second Charge:
On July 6, 2012, the School Board received notice of a second charge of discrimination
from the EEOC, Charge No. 51-2012-02038, which Plaintiff signed on July 7, 2012 (“the Second
Charge”). Kuhn Dec. ¶4. The School Board received the actual charge on July 18, 2012. Id. In
her Second Charge, Plaintiff complains that the Board retaliated against her for filing her First
Charge with the transfer, non-reappointment, and assignment to a teaching position, which
Plaintiff contends happened on May 22. 18 Pl. at 178: 13-16, Pl. Ex. 24; Kuhn Dec. ¶4. Holback
did not learn of the First Charge until after Plaintiff had been removed from HMS. Holback Dec.
¶37. Employee Relations notified Brown and Tiede about the Notice (that did not include the
First Charge) on or about May 18. Brown Dec. ¶21; Tiede Dec. ¶18.
Plaintiff’s Complaint asserts four counts: sex and pregnancy discrimination under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (“Title VII”), as amended by the
Pregnancy Discrimination Act of 1978 (“PDA”), and the Florida Civil Rights Act of 1992, Fla.
Stat. 760.01 (“FCRA”) (Counts I and III); and retaliation under Title VII and the FCRA (Counts
II and IV). Doc. 2. Defendant now moves for summary judgment on all claims and to strike
Plaintiff’s untimely filed exhibits. Docs. 17, 28.
18
Plaintiff complains that a newspaper printed a story about her First Charge (Pl. at 177:23-178:9, Pl. Ex. 24), but
admits that her husband, not the Defendant, contacted the paper and asked them to do a story, that she willingly
participated in an interview with the reporter, and during that interview, she told the reporter about her claims. Pl. at
178:10-12, 179:14-180:11.
14
II.
LEGAL STANDARD
Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the
initial burden of stating the basis for its motion and identifying those portions of the record
demonstrating the absence of genuine issues of material fact. Celotex, 477 U.S. at 323; Hickson
Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir. 2004). That burden can be
discharged if the moving party can show the court that there is “an absence of evidence to support
the nonmoving party’s case.” Celotex, 477 U.S. at 325.
When the moving party has discharged its burden, the nonmoving party must then
designate specific facts showing that there is a genuine issue of material fact. Id. at 324. Issues
of fact are “genuine only if a reasonable jury, considering the evidence present, could find for the
nonmoving party,” and a fact is “material” if it may affect the outcome of the suit under governing
law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). In determining whether a
genuine issue of material fact exists, the court must consider all the evidence in the light most
favorable to the nonmoving party. Celotex, 477 U.S. at 323. However, a party cannot defeat
summary judgment by relying upon conclusory allegations. See Hill v. Oil Dri Corp. of Ga., 198
Fed. App’x 852, 858 (11th Cir. 2006).
III.
DISCUSSION
1.
Defendant’s Motion to Strike
Defendant filed a Motion to Strike Plaintiff’s untimely filed exhibits (Doc. 28), to which
Plaintiff did not respond. On November 29, 2016, Plaintiff filed a response in opposition to the
15
Motion for Summary Judgment which cited to various exhibits. Doc. 24. The exhibits were not
attached to the response. On December 12, 2016, Defendant filed a reply in support of its Motion
for Summary Judgment, in which it pointed out that Plaintiff had failed to file any exhibits with
its response. Doc. 25. Three weeks later and without obtaining leave of Court, Plaintiff filed the
exhibits referenced in the response. Doc. 27. In fact, Plaintiff filed the exhibits as a “Notice,”
indicating that the exhibits were inadvertently not filed with the response, without further
explanation. Id.
“When an act may or must be done within a specified time, the court may, for good cause,
extend the time.” Fed. R. Civ. P. 6. Ordinarily, “[w]hether a motion was filed timely and is
appropriate under a pretrial order is a question left to the district court’s discretion.” Perez v.
Miami-Dade Cty., 297 F.3d 1255, 1263 (11th Cir. 2002). Previously, Plaintiff was granted a tenday extension to respond to Defendant’s Motion for Summary, which was due by November 28,
2016. Doc. 23. Plaintiff filed her response on November 29, 2016, one day late, and the supporting
documents on January 3, 2017. Docs. 24, 27.
Plaintiff’s late filing does not comport with this Court’s Scheduling Order, the Federal
Rules of Civil Procedure and/or Middle District of Florida Local Rule 3.01(b). Plaintiff did not
seek leave of court or provide a sufficient explanation for the delay in filing the exhibits in
opposition to Defendant’s motion. Defendant maintains, inter alia, that Plaintiff’s untimely filing
of the exhibits is prejudicial. The Court agrees. Defendant filed a timely reply in support of its
motion on December 12, 2016. Because Plaintiff’s exhibits had not been filed, in its reply,
Defendant could only address the exhibits in a general manner. Defendant was left to guess and
speculate as to the specifics of the exhibits. After careful consideration, the Court will grant
Defendant’s Motion to Strike Plaintiff’s untimely filed exhibits. Plaintiff has failed to establish
16
good cause or excusable neglect for the untimely filing. See King v. Chubb & Son, No.8:10-cv2916-T-24AEP, 2013 WL 523202, at *2 (M.D. Fla. Feb. 12, 2013) (untimely filed exhibits stricken
where plaintiff did not seek leave of court and failed to provide a sufficient explanation for the late
filing). Defendant’s Motion to Strike will be granted.
2.
A.
Defendant’s Motion for Summary Judgment 19
Title VII /FCRA 20 (Counts I and III)
“The Pregnancy Discrimination Act makes clear that Title VII’s prohibition against sex
discrimination applies to discrimination based on pregnancy.” Young v. United Parcel Serv., Inc.,
135 S. Ct. 1338, 1343, 191 L.Ed. 2d 279 (2015). When analyzing pregnancy discrimination
claims, the Court uses the same type of analysis that is used for sex discrimination claims.
Armstrong v. Flowers Hosp., Inc., 33 F.3d 1308, 1312-13 (11th Cir. 1994); see also Hamilton v.
Southland Christian Sch., Inc., 680 F.3d 1316, 1320 (11th Cir. 2012). A plaintiff alleging a claim
of pregnancy discrimination must show that her employer intended to discriminate against her
because of her pregnancy. Id. at 1313. She may make that showing using either direct or indirect
evidence. Id. Direct evidence of discrimination is “evidence which reflects a discriminatory or
retaliatory attitude correlating to the discrimination or retaliation complained of by the
employee” and “that, if believed, proves the existence of a fact without inference or
19
As an initial matter, the Court notes that Plaintiff’s response in opposition fails to adequately “provide pinpoint
citations to the pages and lines of the record supporting each material fact” as required by this Court in the
Scheduling Order. See CMSO; Doc. 11 (stating that “[g]eneral references to a deposition are inadequate.”). See also
Rule 56 (c)(1), Fed. R. Civ. P.
20
The Florida Supreme Court ruled that “discrimination based on pregnancy is subsumed within the prohibition in
the FCRA against discrimination based on an individual’s sex.” Delva v. Cont’l Grp., Inc., 137 So. 3d 371, 375 (Fla.
2014) (internal quotation marks omitted). When considering claims brought under the FCRA, Florida courts look to
decisions interpreting Title VII. See Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998)
(“Florida courts have held that decisions construing Title VII are applicable when considering claims under the
Florida Civil Rights Act, because the Florida act was patterned after Title VII.”). Thus, where a plaintiff is unable to
maintain a claim under Title VII, she cannot maintain a claim based on the same conduct under the FCRA. Id. at
1389-90.
17
presumption.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004) (alterations
and quotation marks omitted). Indirect evidence is circumstantial evidence. Wright v. Southland
Corp., 187 F.3d 1287, 1293 (11th Cir. 1999).
There is more than one way to show discriminatory intent using indirect or circumstantial
evidence. One way is through the burden-shifting framework set out in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L.Ed.2d 207 (1981). Another
way is “present[ing] circumstantial evidence that creates a triable issue concerning the
employer’s discriminatory intent.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th
Cir. 2011). A triable issue of fact exists if the record, viewed in the light most favorable to the
plaintiff, presents enough circumstantial evidence to raise a reasonable inference of intentional
discrimination. Id. If the plaintiff presents enough circumstantial evidence to raise a reasonable
inference of intentional discrimination, her claim will survive summary judgment. Id.
According to Plaintiff, Holback’s discriminatory actions are as follows: (1) being assigned
to FCAT testing (Pl. at 216:7); (2) being asked to arrange one presentation for the reading teachers
when she did not supervise that department (Pl. at 82:11-16); and (3) Holback’s failure to track
Plaintiff down on one occasion when she missed an important call (Pl. at 82:21-83:1). 21 In addition,
Plaintiff maintains that: (1) Holback was “annoyed” when married employees asked for a day off
to move their children to college (although Holback gave them the day off and they still work for
HMS) (Pl. at 170:18-171:6, 171:22-172:1), (2) Holback looked “inconvenience[d]” when a teacher
requested a half-day to babysit a grandchild (although Holback granted the request) (Pl. at 171:7-
21
Holback did in fact radio Plaintiff in order to remind her of the call. See Doc. 18-11; Ex. 11.
18
21); and (3) Holback “made mention” that a job candidate’s children were often sick (although
Holback hired that candidate). Pl. at 172:14-173:11.
1.
Plaintiff has failed to establish direct evidence of pregnancy discrimination
Defendant argues that Holback’s inquiry regarding Plaintiff’s possible pregnancy for
planning purposes is not direct evidence of discrimination. Plaintiff did not address this issue in
her response in opposition. The Court agrees with Defendant. Courts in this circuit and others
have found that an inquiry similar to Holback’s was not direct evidence of discrimination. See
Torres-Skair v. Medco Health Sols., Inc., 595 Fed. App’x 847, 852 (11th Cir. 2014) (finding no
direct evidence even after comments that the pregnant plaintiff was “moody,” “hormonal,” and
that her pregnancy/medical restrictions were affecting her production); Kocak v. Cmty. Health
Partners of Ohio, Inc., 400 F.3d 466, 471 (6th Cir. 2005) (ruling that supervisor’s question as to
whether the plaintiff was pregnant or intended on having more children was not direct evidence
of discrimination); Laderach v. U-Haul of Northwestern Ohio, 207 F.3d 825, 829 (6th Cir. 2000)
(noting that direct evidence of sex discrimination consisted of testimony that defendant stated
that he would not promote plaintiff because of her sex and did not want plaintiff to answer the
telephone hotline because “women are not mechanically inclined”). Having determined that
Holback’s inquiry is not direct evidence of discrimination, the Court will now conduct the
McDonnell Douglas burden-shifting analysis.
2.
Plaintiff has failed to establish a true comparator
In order for Plaintiff “to establish a prima facie claim of pregnancy discrimination under
Title VII, a plaintiff must establish that: 1) she is a member of a protected group; 2) she was
qualified for her position; 3) she suffered an adverse employment action, and 4) employment or
disciplinary policies were differently applied to her.” DuChateau v. Camp, Dresser & McKee, Inc.,
19
713 F.3d 1298, 1302 (11th Cir. 2013). In determining whether employment or disciplinary policies
were differently applied to her, a “comparator” is used. Wilson v. B/E Aerospace, Inc., 376 F.3d
1079, 1091 (11th Cir. 2004). However, “the plaintiff and the employee she identifies as a
comparator must be similarly situated in all relevant respects.” Id. “The comparator must be nearly
identical to the plaintiff to prevent courts from second-guessing a reasonable decision by the
employer.” Id. “Deficient job performance remains a non-discriminatory basis on which employers
may make employment decisions, so long as performance standards are applied equally.” TorresSkair v. Medco Health Sols., Inc., 595 Fed. App’x at 854.
Here, Defendant argues that the fourth element has not been satisfied. Defendant
maintains that Plaintiff has failed to name a comparator and/or provide any evidence about that
comparator’s disciplinary history. Defendant submits that the only possible comparator is
Assistant Principal Marshall. But according to the Defendant, Plaintiff has failed to offer any
evidence as to Marshall’s disciplinary history. Plaintiff did not address this argument in her
response in opposition. And upon careful review of the record, the Court finds that Plaintiff has
not presented sufficient evidence to demonstrate that similarly situated employees, namely
Marshall, were treated differently. 22 As such, Plaintiff has failed to satisfy the fourth element in
order to establish a prima facie claim of pregnancy discrimination.
3.
Plaintiff has not established pretext
Even if Plaintiff could state a prima facie case, the School Board has provided a
legitimate, non-discriminatory reason for its decision to transfer and demote Plaintiff. Plaintiff’s
performance as an AP has been below average since the day she got the position. Through three
22
In fact, Plaintiff has not presented any evidence of a comparator. Instead, Plaintiff contends that she has sufficient
non-comparison circumstantial evidence to raise a reasonable inference of intentional discrimination.
20
Principals and two District Administrators, Plaintiff continued to underperform. As early as Van
Gorden in November 2007, Plaintiff understood there were concerns about her performance. Pl.
at 35:17-20. Tiede reminded her again in August 2010, and Plaintiff claims she understood. Pl. at
48:13-17. In between these acknowledged warnings, Plaintiff so underperformed another
Principal (Kupczyk), that Tiede was prepared to transfer her at the end of the 2009/2010 school
year. Kupczyk Dec.¶7; Tiede Dec. ¶11. By July 2011, Plaintiff was a “significant concern” for
Brown and Tiede, and one of only five Administrators in the District that earned this designation.
Brown at 21:11-25, 23:1-25; Brown Dec. ¶4; Tiede Dec. ¶14. And indeed, some of this occurred
before Plaintiff had any children, and all of it occurred before the Holback conversation. The
record further reflects that Holback issued Plaintiff three detailed Notices of Performance
Concerns throughout the 2011/2012 school year, one of which preceded Plaintiff’s
announcement that she was pregnant with her second child, all of which provided specific details
of the performance deficiencies that prompted the Notices. Pl. at 54:19-55:7 (1st Notice), Pl. at
97:5-102:6, 104:15-25 (2nd Notice), Pl. at 113:3-10, 244:10-13 (3rd Notice)). Indeed, Plaintiff
admits to having engaged in the behaviors captured in each Notice. Id.
Here, the School Board has clearly established a legitimate, non-discriminatory reason
for Plaintiff’s transfer and non-reappointment. See Torres-Skair, 595 Fed. App’x at 854
(affirming summary judgment where the plaintiff received notice of performance deficiencies
prior to notifying employer of pregnancy, even though termination occurred after notification).
And as previously noted, once a defendant articulates a legitimate, non-discriminatory reason for
its actions, the plaintiff then must show that the defendant’s reason was pretextual. Chapman v.
AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000). However, Plaintiff does not rebut and/or
directly address the pretext issue in her response. As a result, Plaintiff has failed to show that
21
Defendant’s reason for taking employment action was pretextual. Slater v. Energy Servs. Grp.
Int’l Inc., 441 F. App’x 637, 640-41 (11th Cir. 2011) (noting that plaintiff failed to show pretext
where she “was counseled about her absences before she announced her pregnancy, and she
failed to show that her performance issues and [the defendants’] concerns about those issues only
began after her pregnancy announcement”).
4.
Plaintiff has failed to present sufficient circumstantial evidence to establish
a prima facie case without a comparator
Plaintiff may still survive summary judgment by presenting sufficient circumstantial
evidence to raise a reasonable inference of intentional discrimination. Hamilton, 680 F.3d at
1320. A triable issue of fact exists if the record, viewed in the light most favorable to the
plaintiff, presents enough circumstantial evidence to raise a reasonable inference of intentional
discrimination. Id. Plaintiff must present “a convincing mosaic of circumstantial evidence that
would allow a juror to infer intentional discrimination by the decisionmaker.” Lockheed-Martin
Corp., 644 F.3d at 1328 (citations omitted).
Here, Plaintiff argues that her claim should survive summary judgment because she can
present enough circumstantial evidence to raise a reasonable inference of intentional
discrimination. Plaintiff contends that her positive performance evaluations, letter of
recommendation from Van Gorden, and timing of the written performance concerns raise a
reasonable inference of intentional discrimination. 23 She maintains that the first indication of
“performance concerns” occurred after she returned from having a child and voiced her desire to
23
Plaintiff’s positive performance evaluations and letter of recommendation from Van Gorden are among the
exhibits stricken by the Court as untimely filed.
22
have another. Next, Plaintiff points out that prior to her return from maternity leave she had
years of positive performance.
A sudden downturn in an employer’s performance reviews could raise an inference of
pretext. Smith v. Allen Health Sys., Inc., 302 F.3d 827, 834 (8th Cir. 2002); Brewer v. Quaker
State Oil Refining Corp., 72 F.3d 326, 331 (3d Cir. 1995) (noting that “the nonmoving plaintiff
must demonstrate such ‘weaknesses, implausibilities, inconsistencies, incoherences, or
contradictions in the employer’s proffered legitimate reason for its action that a reasonable
factfinder could rationally find them unworthy of credence, and hence infer that the employer did
not act for [the asserted] non-discriminatory reasons.’”) (citation omitted); Hutson v. McDonnell
Douglas Corp., 63 F.3d 771, 779 (8th Cir. 1995) (stating that “demonstration of competence may
serve as evidence of pretext when an employee is discharged for incompetence”); see also
E.E.O.C. v. Navy Federal Credit Union, 424 F.3d 397, 408 (4th Cir. 2005) (noting that record
evidence demonstrating that a plaintiff’s supervisors “were pleased with her overall job
performance and that her opposition to terminate [one of her subordinates] was the actual basis
for her discharge.”).
On the other hand, where an employer provides legitimate reasons for more recent
negative reviews, mere evidence of past good performance does not demonstrate that the
employer’s legitimate non-discriminatory reasons cannot be believed. Blair v. Atlanta
Gastroenterology Associates, LLC, CIVA 105-CV-2811-TWT, 2007 WL 2001769, at *12-13
(N.D. Ga. July 3, 2007); Erickson v. Farmland Indus., Inc., 271 F.3d 718, 729 (8th Cir. 2001)
(noting that “[a]n employer may choose to rely on recent performance more heavily than past
performance”); Roberts v. Separators, Inc., 172 F.3d 448, 453 (7th Cir. 1999) (concluding that a
single positive review and raise ten months prior to the adverse action does not indicate pretext
23
in the face of evidence that the employee had a bad attitude on a number of specific instances
occurring after the raise and review). Indeed, courts have held that past positive performance
evaluations and “suspicious timing” of an adverse employment action are insufficient to
demonstrate a triable issue of discrimination. Blair, 2007 WL 2001769, at *12; Erickson v.
Farmland Indus., Inc., 271 F.3d 718, 729 (8th Cir. 2001); see also Henderson v. Waffle H., Inc.,
238 Fed. App’x 499, 502 (11th Cir. 2007) (unpublished) (finding no error in the district court’s
conclusions that Plaintiff failed to establish a prima facie case of sexual harassment or
retaliation);
Plaintiff also relies on the EEOC’s determination of reasonable cause as evidence of
intentional discrimination. 24 The Court has discretion to determine how much weight to afford
the EEOC’s determination of reasonable cause for discrimination and retaliation. Assily v. Tampa
Gen. Hosp., 814 F. Supp. 1069, 1071 (M.D. Fla. 1993); Kincaid v. Bd. of Trs., Stillman College,
188 Fed. App’x 810, 817 (11th Cir. 2006) (unpublished) (rejecting the plaintiff’s contention that
the EEOC determination raised a genuine issue of material fact); but see, Horne v. Turner
Constr. Co., 136 Fed. App’x 289, 292 (11th Cir. 2005) (unpublished) (holding that the district
court should have taken into consideration in the summary judgment proceeding the EEOC’s
finding that there was reasonable cause to believe that discrimination occurred and that the court
erred by failing to do so);Rowell v. BellSouth Corp., 433 F.3d 794, 800 (11th Cir. 2005) (noting
that “on motions for summary judgment, we may consider only that evidence which can be
reduced to an admissible form.”). The Court has not considered Plaintiff’s EEOC Letters because
they were stricken. Even if they had not been stricken, The EEOC Letters of Determination
24
The EEOC’s Letters of Determination are among the exhibits stricken by the Court as untimely filed. The Court
will not rely on these letters and, therefore, they provide no evidence of intentional discrimination.
24
would not be sufficient evidence, on the record before this Court, to defeat Defendant’s motion
for summary judgment.
Here, Plaintiff’s conclusory allegations of intentional discrimination, without more, are
insufficient to raise an inference of pretext and/or intentional discrimination. Grigsby v. Reynolds
Metals Co., 821 F.2d 590, 597 (11th Cir. 1987). Defendant has offered extensive evidence of
legitimate and nondiscriminatory reasons for its employment actions. See e.g. Tiede Dec. ¶5;
Doc. 18; Reprimand Ltr., Ex. 3 (November 2007)(meeting topics included Plaintiff’s work ethic,
honesty, commitment to her job, and communication, among other concerns); Ex. 11; Brown
Dec. ¶8 (December 5, 2011 meeting where Brown scored Plaintiff as “unsatisfactory.”); Van
Gorden at 8:10-20, 9:2-8 (Van Gorden describes Plaintiff as having “potential” but identified
Plaintiff’s commitment to putting the time needed into the job of Administrator and honesty as
his main areas of concern.); Doc. 18, Ex. 4; Holback Dec. ¶¶10, 11 (September 20, 2011) (First
Notice of Performance Concerns) (Holback was concerned that, inter alia, Plaintiff scheduled a
non-emergency personal appointment during the school day, gave only 15 hours’ notice,
disregarded her mandatory work meeting, and did not meet with her prior to leaving that
morning.); Ex. 11; Holback Dec. ¶¶22-25 (Second Notice of Performance Concerns dated May
4, 2012) (Plaintiff was at lunch during a scheduled conference call and Holback expressed her
serious concerns about her oversight of the Emotionally and Behaviorally Disabled unit and
placement of behavioral problem student in the office as a helper); Doc. 18; Ex. 16 (Third Notice
of Performance Concerns) (Poor organization of HMS’s athletic banquet on May 17, 2012). The
record is clear that Plaintiff’s poor performance began prior to her pregnancy and continued
throughout her time at HMS. Moreover, Plaintiff’s characterization that her “reviews” were
positive is also belied by the record. See Doc. 19, Ex. 30, 8:10-20, 9:2-8 Tiede Dec. ¶12.;
25
Holback at 21:5-25; Holback Dec. ¶3.(Tiede specifically spoke with Plaintiff about the fact that
both of her prior Principals shared similar types of complaints about her performance which
Tiede believed indicated that Plaintiff was not improving). Indeed, the record reflects that the
School Board repeatedly attempted to coach Plaintiff in order to improve her performance, but
Plaintiff continued to underperform.
Plaintiff has failed to establish a prima facie case of discrimination under the McDonnell
Douglas burden-shifting analysis. Additionally, Plaintiff has not shown that the Defendant’s
reason for its employment action was pretextual. Likewise, Plaintiff has failed to present enough
non-comparison circumstantial evidence to raise a reasonable inference of intentional
discrimination. .As no genuine issues of material fact exist, Defendant is entitled to judgment in
its favor as a matter of law as to Counts I and III of the Complaint.
B.
Retaliation (Counts II and IV)
“To establish a prima facie case of retaliation under Title VII, a plaintiff must show that
(1) [s]he engaged in statutorily protected expression; (2) [s]he suffered an adverse employment
action; and (3) there is some causal relation between the two events.” Olmsted v. Taco Bell
Corp., 141 F.3d 1457, 1460 (11th Cir. 1998). “Title VII retaliation claims must be proved
according to traditional principles of but-for causation....” Univ. of Tex. Sw. Med. Ctr. v. Nassar,
133 S. Ct. 2517, 2533 (2013). When establishing a causal connection between the protected
activity and the adverse action, generally a plaintiff must show that: (1) the decision-makers
were aware of the protected conduct and (2) the protected conduct and adverse action(s) were not
“wholly unrelated.” Walker v. Sec’y, U.S. Dep’t of Air Force, 518 Fed. App’x 626, 628 (11th
Cir. 2013) (citation omitted).
26
1.
Plaintiff has failed to establish a causal relationship
In the instant case, Plaintiff alleges that the School Board’s decision to transfer her to the
District Office, not renew her AP contract and return her to a teaching position was in retaliation
for having filed her First Charge with the EEOC. Plaintiff’s contention is without merit. The
record reflects that the decision to remove Plaintiff from HMS, as well as the decision to not
renew her contract, had been contemplated for not only months, but years, before she engaged in
any protected activity. In fact, the decision to transfer her from HMS had been made by Tiede in
April/May 2010 although never communicated to her, and Brown had warned Plaintiff in
December 2011 that if her performance does not improve, she would recommend to the
Superintendent that her contract not be renewed at the close of the school year. Brown Dec. ¶7;
Tiede Dec. ¶11. Furthermore, Brown and Tiede spoke throughout the 2011/2012 school year that
Plaintiff would likely not be renewed (pre-charge). Tiede Dec. ¶14. In addition, Plaintiff
admitted that she was responsible for a disastrous athletic banquet on May 17 (pre-charge) (Doc.
18; Ex. 16 (Third Notice of Performance Concerns) (Poor organization of HMS’s athletic
banquet on May 17, 2012)), and her regularly scheduled monthly coaching session with Brown
and Holback had been scheduled for May 21 since at least May 16 (pre-charge) (Doc. 18; Ex. 9).
The fact that the transfer and non-renewal were communicated to Plaintiff after the School Board
received notice that she had filed a charge (not even her actual charge) is not dispositive.
“In a retaliation case, when an employer contemplates an adverse employment action
before an employee engages in protected activity, temporal proximity between the protected
activity and the subsequent adverse employment action does not suffice to show causation.”
Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006); see also Clark Cty. Sch. Dist. v. Breeden,
532 U.S. 268, 272 (2001) (“Employers need not suspend previously planned transfers upon
27
discovering that a Title VII suit has been filed, and their proceeding along lines previously
contemplated, though not yet definitively determined, is no evidence whatever of causality.”). As
such, Plaintiff has failed to show a causal connection between her protected activity and the
adverse action.
2.
Plaintiff has failed to establish pretext.
Even if Plaintiff had shown causation, the School Board still prevails for the same
reason that it prevails on the discrimination claim – it has produced a legitimate, nondiscriminatory reason for its action, which Plaintiff has not rebutted with any evidence of pretext.
See e.g. Tiede Dec. ¶5; Doc. 18; Reprimand Ltr., Ex. 3 (November 2007)(meeting topics
included Plaintiff’s work ethic, honesty, commitment to her job, and communication, among
other concerns); Ex. 11; Brown Dec. ¶8 (December 5, 2011 meeting where Brown scored
Plaintiff as “unsatisfactory.”); Van Gorden at 8:10-20, 9:2-8 (Van Gorden describes Plaintiff as
having “potential” but identified Plaintiff’s commitment to putting the time needed into the job
of Administrator and honesty as his main areas of concern.); Doc. 18, Ex. 4; Holback Dec. ¶¶10,
11 (September 20, 2011) (First Notice of Performance Concerns) (Holback was concerned that,
inter alia, Plaintiff scheduled a non-emergency personal appointment during the school day,
gave only 15 hours’ notice, disregarded her mandatory work meeting, and did not meet with her
prior to leaving that morning.); Ex. 11; Holback Dec. ¶¶22-25 (Second Notice of Performance
Concerns dated May 4, 2012) (Plaintiff was at lunch during a scheduled conference call and
Holback expressed her serious concerns about her oversight of the Emotionally and Behaviorally
Disabled unit and placement of behavioral problem student in the office as a helper); Doc. 18;
Ex. 16 (Third Notice of Performance Concerns) (Poor organization of HMS’s athletic banquet on
May 17, 2012). Accordingly, Plaintiff has failed to establish her retaliation claim and to rebut
28
Defendant’s legitimate business reasons for her transfer. See, e.g., Turner v. City of Auburn, 361
F. App’x 62, 65 (11th Cir. 2010) (affirming summary judgment where “no reasonable fact finder
could find that [Defendant’s] proffered legitimate, nonretaliatory reasons for its decisions were
not what actually motivated [Defendant’s] conduct and were, instead, pretext for retaliation”). As
no genuine issue of material fact exists, Defendant is entitled to judgment in its favor as a matter
of law on Counts II and IV of the Complaint.
C.
Plaintiff’s Additional Complaints
Plaintiff appears to allege that other actions by Defendant were discriminatory or related
to or in retaliation for her First Charge. For the 2012/2013 school year, Plaintiff was assigned to
River Ridge Middle School as a VE teacher. Pl. at 134:13-135:3. In June 2012, Plaintiff applied
for a VE and/or support facilitation position at Land O’Lakes High School (a lateral move) and
learned that she did not get the position on or around June 25, 2012. 25 Pl. at 138:9-139:2;
136:22-137:4, 140:4-17, 285:5-12, Doc. 18; Ex. 20. Plaintiff believed that this was
discrimination and retaliation. Pl. at 137:4. However, Plaintiff testified that she did not believe
that Rick Mellon, the decision-maker for the lateral positions, discriminated against her. Doc. 181, Pl. at 142:8-16. Plaintiff speculated that the discrimination was based on whoever was in
charge of Rick Mellon, likely Beth Brown or Tina Tiede. Id. at 142:8-16. Plaintiff testified that
she did not know Rick Mellon. Doc. 18-1, Pl. at 141:25-142:3. Plaintiff also testified that she did
not know the candidates hired. Id. at 140:20-141:25.
25
Plaintiff identified three potentially successful candidates for the two positions she claims are at issue. Pl. at
140:18-23. Plaintiff also applied for two or three Virtual Education positions between December 2013 and March
2014, which were also lateral moves that she did not get. Pl. at 151:1-5, 151:13-14,152:18-24, Doc. 18; Ex. 22,
23.However, Plaintiff does not contend that these denials were discrimination/retaliation. Pl. at 152:13-14, 153:3-10.
29
Defendant argues that denial of a lateral position is without legal significance. Defendant
maintains that Plaintiff failed to explain how denial of a lateral position could relate to
Defendant’s knowledge of the First Charge when she does not know the decision-maker or the
successful candidate. Plaintiff does not respond to this aspect of Defendant’s motion. Without
question, the filing of the EEOC complaint satisfies the first prong for retaliation. Assuming,
without deciding, that the denial of a lateral position was an adverse action, Plaintiff fails to
show that Rick Mellon knew of her protected activity and took adverse action against her
because of it. Indeed, Plaintiff admits that she did not know the decision maker and does not
know who obtained the positions. Without more than Plaintiff’s speculation, this contention fails.
In regard to being removed from the AP administrative pool, Plaintiff believes that this is
an example of discrimination. Pl. at 135:19-136:10. Moreover, in July 2012, Plaintiff was
informed that as a result of the performance concerns that led to her non-reappointment, she was
removed from the Assistant Principal Pool and would be eligible to reapply starting with the
2014/2015 school year. Doc. 18; Ex. 21; Brown at 8:9-25; Brown Dec ¶22; Tiede at 24:2025:15; Tiede Dec. ¶19. Plaintiff is not aware of any AP that returned to the AP pool after being
removed from the position for performance. Pl. at 144:25-145:7. Once eligible, Plaintiff applied
for the pool in April 2014. Pl. at 153:15-19, 213:17-25. Following a blind scoring process,
Plaintiff’s application ranked 41 out of 48 applicants, and she did not make the pool. Doc. 19-7;
Ex. 32, Joel Di Vincent Dec. ¶5. Plaintiff does not rebut this evidence.
Defendant contends that Plaintiff’s removal from the AP pool was consistent with
District policy. Defendant further contends that Plaintiff’s application rank was not based on
discrimination but a blind scoring process. Plaintiff’s response does not address this contention.
And after careful consideration, the Court finds that these contentions cannot serve as a basis for
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Plaintiff’s discrimination and/or retaliation claims. Plaintiff only raises conclusory speculation
regarding her failure to get the lateral positions and her blind ranking placement in the AP pool.
Moreover, Plaintiff fails to establish that the blind-ranking on her application was related to her
previous performance with the Defendant. In sum, Plaintiff’s contentions are without merit.
D.
Failure to Exhaust Administrative Remedies
Title VII and the FCRA both require that a plaintiff timely file a charge of discrimination
with the appropriate administrative agency. A failure to exhaust first requires dismissal. See
Chanda v. Engelhard/ICC, 234 F.3d 1219, 1225 (11th Cir. 2000). Discrete acts such as a denial
of a position or promotion is a separate and distinct alleged violation of Title VII or FCRA with
its own statute of limitations, and each must be brought within 300 or 365 days, even if related to
timely asserted acts. See National RR. Passenger Corp. v. Morgan, 536 U.S. 101, 114-115, 122
S. Ct. 2061, 153 L.Ed. 2d 106 (2002).
Defendant contends that Plaintiff never filed a charge of discrimination complaining
about the lateral teaching positions or the AP pool. Plaintiff does not address this contention in
her response to the Motion for Summary Judgment. There is no evidence before the Court to
indicate that Plaintiff filed a charge complaining about the three to five lateral teaching positions
or the AP Administrative pool (either her two year ban or inability to score well enough to
return). Therefore, as an additional basis for dismissal, Plaintiff’s additional complaints are
dismissed for failure to exhaust administrative remedies.
E.
Conclusion
As no genuine issues of material fact exist, Defendant is entitled to judgment in its favor
as to all counts of Plaintiff’s Complaint. For the reasons stated above, it is hereby ORDERED
AND ADJUDGED:
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1.
Defendant’s Motion to Strike (Doc. 28) is GRANTED.
2.
Defendant’s Motion for Summary Judgment (Doc. 17) is GRANTED.
3.
The Clerk is directed to enter judgment in favor of Defendant, Pasco County School
Board, and against Plaintiff, Buffey Simon-Leonard.
4.
The Clerk is further directed to terminate all pending motions and deadlines and
close this file.
DONE AND ORDERED in Tampa, Florida on September 29, 2017.
Copies to:
Counsel of Record and Unrepresented Parties, if any
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