STALLWORTH v. OKALOOSA COUNTY SCHOOL DISTRICT

Filing 110

ORDER granting in part and denying in part 76 Motion for Summary Judgment and finding as moot 75 Motion for Summary Judgment (clerk shall terminate). Dft's motion for summary judgment 76 is GRANTED on the disparate tr eatment claim of Count I, the Title VII retaliation claim of Count II, and the workers' compensation retaliation claim based on the elimination of the classroom assistant position articulated in Count III. The motion is DENIED on the hostile work environment claim of Count I and the workers' compensation retaliation claims of coercion and intimidation based on the conduct of Palmer and Foxworthy in Count III. Signed by CHIEF JUDGE M CASEY RODGERS on 9/30/2011. (sps)

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UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION

RACHELL A. STALLWORTH,
Plaintiff,
v.

Case No. 3:09cv404/MCR/CJK

OKALOOSA COUNTY SCHOOL DISTRICT,
Defendant.
_______________________________/
ORDER
Plaintiff Rachell Stallworth filed this suit against her former employer, Defendant
Okaloosa County School District (“School District”), claiming racial discrimination,
harassment, and retaliation, in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. §§ 2000e, et seq., & 1981a (“Title VII”); and a state law claim of
workers’ compensation retaliation, in violation of Florida law, Fla. Stat. § 440.205. Pending
before the court is Defendant Okaloosa County School District’s motion for summary
judgment (doc. 76).1 Having fully considered the record and the arguments of the parties,
the court finds that the motion is due to be DENIED in part and GRANTED in part.
Background2
Rachell Stallworth is a black woman who worked as a classroom assistant to Janice

1

The defendant also filed a m otion for sum m ary judgm ent at Doc. 75, but it appears to be identical
to Doc. 76. Therefore, the Clerk will be directed to term inate the m otion filed as Doc. 75 as m oot on the
court’s disposition of Doc. 76 in this order.
2

For the lim ited purposes of this sum m ary judgm ent proceeding, the court views "the evidence
and all reasonable inferences drawn from it in the light m ost favorable to the nonm oving party," which in this
case is W ashington. Martin v. Brevard County Pub. Sch., 543 F.3d 1261, 1265 (11th Cir. 2008) (internal
m arks om itted). The court is m indful that "what is considered to be the facts at the sum m ary judgm ent stage
m ay not turn out to be the actual facts if the case goes to trial." Cottrell v. Caldwell, 85 F.3d 1480, 1486 (11th
Cir. 1996).
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Barrow, who is white, in the Teen-Age Parent Program (“TAPP”) at Crestview High School,
located in Crestview Florida, from August 2005 until the spring of 2008.3 Stallworth claims
that Barrow created a racially hostile work environment in the TAPP classroom. During
most of this time, Stallworth’s daughter attended Crestview High School and spent time
after her classes in the TAPP room where Stallworth worked under Barrow. Stallworth, her
daughter, and students in the TAPP room had complained to the School District at various
times about Barrow’s actions.
According to Stallworth, Barrows treated her “like a nobody” and a “child” and
belittled Stallworth on a regular basis. Barrow treated Stallworth in a rude manner several
times a day, yelled at her, and consistently expressed a dislike of Stallworth through her
language and demeanor. Stallworth complains that Arden Farley, the School District’s
Equity Coordinator, would telephone Barrow nearly every day to verify the time Stallworth
arrived. During the first semester, Barrow refused to allow Stallworth to interact with the
students and required Stallworth to remain in the TAPP classroom, even during the lunch
break. Stallworth states that Barrow forced her to sit at a student’s desk although the room
had two teacher’s desks. Stallworth requested and was given a teacher’s desk in the fall
of 2007 by Principal Coleman. Stallworth states that she was denied a key to the
classroom until her last semester, in 2008; however, a substitute teacher who was white
was given a key. Stallworth reports that Barrow told her she did not need a key and also
said she (Barrow) was afraid something might come up missing if Stallworth had a key.
According to Stallworth, Barrow treated her like a dog, ordering her to “go and fetch” the
mail every day in a hateful tone. Barrow insisted that Stallworth crawl on the floor to plug
in electronic equipment on a daily basis, which humiliated Stallworth and made her feel
“like a dog.” (Stallworth’s Depo. at 121, 240). Stallworth stated that when she put the

3

Previously, Stallworth had worked with another TAPP instructor in Fort W alton Beach, where the
School District operated a second TAPP classroom . W hile in Fort W alton Beach, Stallworth com plained
m ultiple tim es to Arden Farley about inappropriate and offensive conduct by the teacher there, Dawn Hall, who
is white. This led to Stallworth’s transfer to the Crestview program , but no action was taken against Hall at that
tim e. Stallworth com plained about Hall to the state agency, and Hall’s em ploym ent was eventually term inated.

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surge protector on a table to avoid having to crawl on the floor to plug in the equipment,
Barrow insisted that it be left on the floor. Stallworth complains that Barrow frequently
rolled her eyes at Stallworth during conversations and generally acted superior. By way
of example, Stallworth asserts that Barrow refused to allow the students in TAPP to
participate in certain computer classes until after Barrow herself had been formally trained
in the system, and she refused to learn from Stallworth, despite the fact that Stallworth had
already been formally trained and had trained other teachers in the School District on the
same system. Additionally, Stallworth stated that throughout her time working as Barrow’s
classroom assistant, Barrow had insisted to the students that Stallworth was teaching them
improperly. A former student who is black, Dalivia Baker, testified by deposition that
Barrow would say things such as, “don’t listen to Ms. Stallworth.” (D. Baker’s Depo. at 33).
Baker also testified that she could tell Barrow did not like Stallworth by the way Barrow
behaved toward Stallworth.
Stallworth testified that most classes were computer courses, math or physical
education, except that in the spring semester of 2006, Barrow began reading Harper Lee’s
novel, To Kill A Mockingbird, aloud in the classroom. Stallworth testified that Barrow read
the book in such a way that, by her demeanor, she directed the racial slur, “nigger” as used
in the book, at Stallworth during the reading, even after students voiced discomfort with the
use of the word. Dalivia Baker testified that Barrow would look up and emphasize the
racially offensive portions of the book, and that Barrow would turn to look at Stallworth.
According to Stallworth, some students intentionally missed school because of the
offensive manner in which the book was read.
Stallworth also complains that Barrow ignored Stallworth’s daughter, Arraye, when
she came to study in the room after school. Barrow would also keep the lights off in the
room. Stallworth and Arraye testified that Barrow would read by a small light at her desk
but keep the other lights off and some days Barrow would lock the classroom door, causing
Stallworth’s daughter to mistakenly think her mother wanted her to take the bus home.
Arraye testified that she observed Barrow and Stallworth almost every day after school and
that Barrow consistently treated her mother with disrespect, a superior attitude, and
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unpleasant or distasteful looks. She stated that the worst thing Barrow did to them was to
keep the lights off after the school day was over. Arraye stated that she complained of this
to the principal, Ed Coleman, who did not help her.
Toyoka Parsons, who was employed at Crestview High School as an aid and the
mother of a former TAPP student who is biracial, saw Stallworth and Barrow together at
the school on one occasion when Stallworth was on the verge of tears; Barrow shrugged
her shoulders, threw her hands up, and walked off. Parsons and several other witnesses
testified that Barrow treated Stallworth with disrespect, including Desiree Illar, a white
former student; Baker and her mother, Kim Baker; and Irene Varner, who is the mother of
a former TAPP student who is black. These witnesses (with the exception of Illar, a white
student who said there were no black students in her class) also testified that Barrow gave
preferential treatment to the white students and referred to the black students as “them”
(Stallworth’s Depo. at 175) or as “colored” (Parson’s Depo. at 44). Stallworth stated that
the black students were given more “Fs” on their progress reports than the white students.4
Stallworth complained to Principal Coleman about Barrow’s reading of To Kill a
Mockingbird, which she and students found racially offensive, and of her concern that
Barrow was favoring the white students. There is also evidence that she complained to
Michael Foxworthy, Chief Officer for Human Resources. Student Dalivia Baker complained
of the readings to Principal Coleman as well, who stated he referred the complaints to
Equity Coordinator Arden Farley. Through Farley, the School District conducted an
investigation. Notwithstanding, according to Stallworth, Barrow continued to read the book
4

The Bakers and Varner felt that Barrow treated the black students less favorably than the white
students for several reasons. Am ong other things, Dalivia testified that Barrow required the black students
to handwrite their work for their governm ent and m ath classes, which they were learning from books, while
the white seniors were allowed to use the com puters to com plete their governm ent and m ath classes. She
also stated that the students had segregated arranged seating in the classroom , with the blacks seated near
the door and the white students near the window in front of Barrow's desk. Dalivia testified that two favored
white students in her class were allowed to spend as m uch tim e sleeping in a recliner as they liked in the
nursery section of the classroom , contrary to the rules Barrow had set forth for the rest of the group. W hen
it was tim e to prepare for the FCAT, Dalivia observed that the white students had assigned FCAT practice
books, while the black students did not. She also testified that when they were required to read To Kill a
M ockingbird, Barrow read the racially offensive parts aloud and did not teach them the m oral of the story.
Dalivia's m other felt that Barrow was m ore dem anding of the black students. Varner testified that Barrow
would roll her eyes at her and treat her with a superior attitude.
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in class, and Farley did not interview Stallworth. Instead, she was contacted by the state
agency for Professional Practice, and based on this contact and comments by students
and a parent, Stallworth became concerned that the School District considered her to have
agitated the student into complaining about Barrow.
Barrow remains the TAPP teacher at Crestview High School. She has never been
disciplined, and Foxworthy has never recommended her for discipline. Foxworthy admitted
it would be inappropriate for a teacher to focus the classroom discussion exclusively on the
racist dialogue of a character in To Kill A Mockingbird, but stated that more than two
students would have to agree that this was occurring before he would conclude the
teacher’s demeanor in reading the slur out of a book was racially hostile.5 To Kill A
Mockingbird is no longer on the curriculum.

Foxworthy explained there has been

“controversy in Okaloosa on To Kill A Mockingbird and the use of the term ‘nigger’ in that
book.” (Foxworthy’s Depo. at 61).

Barrow has not taught from the book since the

2007-2008 school year.
On or about December 10, 2007, Stallworth injured her knee. She continued to
report to work, and, according to Stallworth, Barrow continued to insist that she crawl on
the floor to plug in equipment in the classroom. The School District’s risk manager for
workers’ compensation claims, Jim Palmer, initially agreed that Stallworth could have her
surgery in March and recover during spring break, but Stallworth states that he later began
demanding that she have the surgery in February. Palmer told her she would have the
surgery when he told her to have it and accused her of being more concerned with her
“religious social club” than in returning to work. He also made a comment to her to the
effect that he would see to it that she did not have job to return to. Stallworth’s last day of
work before surgery was January 22, 2008. She exhausted her vacation and sick leave
before receiving workers’ compensation benefits on March 1, 2008; and her surgery went
forward as planned in March 2008.
Stallworth complains that following her surgery, she was required to return to work

5

There is evidence in this case that one student com plained about Barrow’s reading of the book.

Case No. 3:09cv404/MCR/CJK

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before being personally evaluated by the surgeon in a follow-up visit. She complains of
conduct by Glenda Torres, a nurse case manager consultant or liaison that the School
District used to facilitate workers’ compensation claims.

The record reflects that

Stallworth’s doctor, Dr. Richard Sellers, released her to full duty following surgery, without
checking any limitations. According to Stallworth, she returned to bring this to his attention
and Torres interfered with her physician-patient relationship by intercepting the release and
writing “full duty” on the paper without speaking again with the doctor. (Stallworth’s Depo.
at 77). Stallworth complains that after she began to experience swelling following her
return to work, Palmer denied her request to remain home until she could see the doctor,
and as a result, she ended up in the emergency room, where the doctor advised her to stay
off of work until her knee was better. The emergency room doctor gave her an excuse for
two days off of work. Stallworth stated that disputes arose between her and Torres when
she attempted to communicate with Torres about the emergency room visit after which
Stallworth told Dr. Sellers’ office that she did not want Torres to attend her appointments
any more. Shortly thereafter, Dr. Sellers refused to treat Stallworth any longer; Stallworth
alleges simply that some interference by Torres “poison[ed] the well.” (Stallworth’s Depo.
at 87).
Kaye McKinley was the School District’s Deputy Superintendent.

Her

responsibilities included oversight of the TAPP program throughout the district as well as
manage its staffing needs. She stated in her affidavit that, faced with district-wide budget
cuts and declining enrollment in the TAPP program, she determined in April 2008 that the
TAPP classroom assistant position at Crestview High School could not be justified for the
2008-09 school year. According to McKinley, she had no contact with Jim Palmer, the
workers’ compensation risk manager, regarding Stallworth or eliminating the position.
Barrow’s only input into the decision was to provide McKinley with the number of students
enrolled in the program for the 2008-09 school year. McKinley stated that at the time she
made the decision to eliminate the position, she had no knowledge that Stallworth had
suffered a work-related injury or that she had sought workers’ compensation benefits or
made complaints about the School District’s failure to provide workers’ compensation
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benefits or racial harassment. To the contrary, Stallworth states in a declaration that she
spoke with McKinley about these complaints (regarding both workers’ compensation issues
and racial harassment in the classroom) on two occasions, once prior to the decision to
eliminate her position, and McKinley instructed her to contact Foxworthy, which she did.
Principal Coleman testified that he referred the “situation” to McKinley, “just so she would
be aware of it,” and to Farley, so he could begin to interview students. (This appears to
reference the classroom conflict surrounding Barrow’s reading of To Kill a Mockingbird, but
it is unclear from the deposition excerpt provided.) (Coleman’s Depo. at 12; Doc. 84-4, at
12). Coleman also had Barrow draft a letter regarding the To Kill a Mockingbird classroom
situation, which he said he forwarded to McKinley.
Stallworth states that in April 2008, Barrow informed her she would not be returning
to the TAPP classroom the following year. Also in April, she received a letter notifying her
that the position was being eliminated. The elimination of this position caused the School
District to place Stallworth in a “no position” status for the 2008-09 school year and on the
layoff list. According to the procedure described by Foxworthy, which was dictated by the
union contract and followed in this instance, an employee in this status can “bump” a less
senior employee holding a position in the same job category, resulting in the actual layoff
of the employee with the least seniority in a particular job category. Thus, the School
District began looking for another position for Stallworth. Stallworth asserts that Barbara
Smallwood, her white counterpart working as a classroom assistant in the Fort Walton High
School TAPP classroom, was permitted to retain her position, though she had “only several
months more service” than Stallworth. (Stallworth’s Decl., at ¶ 8). Foxworthy testified that
all classroom assistants are considered as one category and that Stallworth was eligible
to be placed in any teacher assistant position.
According to Stallworth, she returned to work at one location as a classroom
assistant but she quit because she had to walk beyond her physical capabilities at the time
and thus could not do the job.

The School District then offered her a position of

transportation assistant, also called a bus monitor, which was classified the same as a
classroom assistant. Stallworth testified that having done that job in the past, she was
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aware that it would require her to bend her knees and move wheelchairs on and off the
bus, which she refused to do on grounds that these activities were beyond her physical
capabilities. Foxworthy testified that in making these job offers, he relied on the doctors’
recommendations

to

determine

Stallworth’s

capabilities,

not Stallworth’s

own

representation of her capabilities. He stated that the School District quit having contact
with Stallworth after she rejected the alternative job proposal of bus monitor, and that she
in turn ended her contact with the school at that point.

Foxworthy was aware of

Stallworth’s complaints regarding Palmer’s conduct and his denial of workers’
compensation benefits to which Stallworth felt she was entitled. Foxworthy also knew that
Stallworth had complained of Barrow’s racial bias. Foxworthy testified that he was the
decision-maker regarding layoffs, but that he did not eliminate positions. Kaye McKinley
stated in her affidavit that she was the decision-maker regarding the elimination of the
Crestview TAPP classroom assistant position, which caused Stallworth to be on
“no-position” status.
Stallworth testified that her work environment caused her stress and emotional pain,
which resulted in her staying home in bed rather than going to work more than ten times.
She states that her sleep was disturbed and she suffered depression. In 2008, Stallworth
filed a charge of racial discrimination based on her experiences with the School District and
harassment by Barrow.
Discussion
Objection to Portions of Plaintiff’s Declaration
The School District argues that the court should not consider allegations in the
plaintiff’s declaration regarding complaints she made to Kaye McKinley, arguing that these
portions of the declaration are self-serving, factually inaccurate, mischaracterize deposition
testimony, and amount to a sham, and that plaintiff should be sanctioned for the failure the
disclose the information in Rule 26 disclosures. There is nothing inherently wrong with
considering self-serving testimony at the summary judgment stage. See Price v. Time,
Inc., 416 F.3d 1327, 1345 (11th Cir.), modified on denial of reh’g on other grounds, 425
F.3d 1292 (11th Cir. 2005). However, a party’s affidavit that is inherently inconsistent with
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that party’s prior sworn deposition testimony may be disregarded as a sham if it creates
an issue of fact by “merely contradic[ting], without explanation, previously given clear
testimony.” Van T. Junkins & Assoc., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657-59 (11th
Cir. 1984). “If a party who has been examined at length on deposition could raise an issue
of fact simply by submitting an affidavit contradicting his own prior testimony, this would
greatly diminish the utility of summary judgment as a procedure for screening out sham
issues of fact.” Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986) (internal
marks omitted). The rule is that any issue of fact stated in an affidavit which is “flatly
contradicted by an earlier deposition [i]s so suspect of untruthfulness as to be disregarded
as a matter of law.” Id. However, this court must take care to distinguish between
discrepancies that are inherently inconsistent and "create transparent shams" from those
that merely "create an issue of credibility or go to the weight of the evidence." Id. at 953.
The record shows that on February 17, 2010, the defendant served its Rule 26(a)(1)
disclosures on the plaintiff, identifying Kaye McKinley, Deputy Superintendent, as able to
testify as to matters related to Stallworth’s employment with the School District. Plaintiff’s
Rule 26 disclosures and supplemental disclosure identify McKinley as having knowledge
of the decision not to renew the plaintiff’s contract (referencing the April 15, 2008 letter
communicating her lay off). During her deposition on May 28, 2010, Stallworth testified
that she had complained to several individuals regarding Barrows’ alleged discriminatory
treatment or harassment and of issues regarding her workers’ compensation claims, and
she stated that she had kept a personal diary or list of events that occurred during her
employment at Crestview, which she testified was accurate and she did not leave anything
out. When asked if she knew Kaye McKinley, Stallworth testified that she knew her to be
the assistant superintendent and Barrow’s new boss the last year Stallworth worked at
Crestview. Stallworth explained that there had been some reorganization of management,
resulting in McKinley being placed “over both programs administratively.”6 (Stallworth’s
Depo. at 216) Stallworth further explained that although Principal Coleman was “the boss,
6

As noted previously, there were two TAPP classroom s, one in Crestview High School and another
in Ft. W alton Beach, Florida.
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boss,” McKinley “was, like, over the TAPP program.” (Id.) She was asked, “So she was
the person within the School District responsible for TAPP?” to which Stallworth answered,
“Yes.”7 (Id.) When asked, “Did you know her at all?” plaintiff responded, “No sir. I know
the name, but I don’t know her.” (Stallworth’s Depo. at 217)
In Stallworth’s declaration submitted in opposition to the School District’s motion for
summary judgment, Stallworth stated that she in fact had two conversations with McKinley
in which she expressly told McKinley of her complaints regarding workers’ compensation
concerns, retaliation, and racial harassment in the classroom. Stallworth explained the
inconsistency by stating that, during the deposition, she had not been specifically asked
whether she had spoken with McKinley, only if she knew her, and that she did not
previously understand that McKinley might have made the decision to eliminate her
position because Foxworthy said he made the layoff determinations. Stallworth stated in
her declaration that she now recalls these conversations with McKinley and asserted that
McKinley specifically knew of her work-related injury and complaints regarding workers’
compensation and racial hostility in the classroom.
While the Stallworth’s sudden recollection of these two conversations is suspect,
the court cannot find that her declaration statements are inherently inconsistent with her
deposition testimony that she did not know McKinley. She was not asked whether she had
ever spoken with McKinley. Furthermore, it is plausible that Stallworth simply did not
remember these conversations with McKinley at the time of her deposition, that she did not
consider them as important because McKinley had told her to call Foxworthy, that she did
not feel she knew McKinley after two brief conversations, or that she did not previously
make the connection that McKinley’s oversight of the TAPP program also made her
responsible for determining staffing levels for the program. Her statement that she did not
“know” McKinley is not flatly contradicted by her new recollection of having spoken with her
twice. Instead, the inconsistencies here involve an issue of credibility for a jury and thus

7
Plaintiff's Rule 26 disclosures and her supplem ental disclosures identify McKinley as having
knowledge of the decision not to renew her contract and "m ay have other inform ation relevant to the claim s
of the plaintiff." (Docs. 85-4 and 85-5)

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the issue goes to the weight, not the admissibility, of the evidence.8 See Tippens, 805 F.2d
at 953-55 (explaining that variations in testimony and memory failures go to weight and
credibility whereas falsehoods or “flat contradiction[s]” justify disregarding an affidavit as
a sham).

Thus the court concludes that Stallworth's declaration is not inherently

inconsistent with her sworn deposition testimony and that she has substantially justified the
failure to provide it earlier; therefore, the court will not disregard it.9
Summary Judgment Standard
Summary judgment is appropriate when the evidence, viewed in the light most
favorable to the nonmoving party, "shows that there is no genuine dispute as to any
material fact" and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a); see also Martin v. Brevard Cnty. Pub. Sch., 543 F.3d 1261, 1265 (11th Cir. 2008).
“[T]he substantive law will identify which facts are material” and which are irrelevant.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On summary judgment, the
court’s function is not to weigh the evidence to determine the truth of the matter, but to
determine whether a genuine issue of fact exists for trial. See id. at 249. An issue of fact
is “material” if it is a legal element of the claim under the applicable substantive law that
might affect the outcome of the case, and it is “genuine” if the record taken as a whole
could lead a rational fact finder to find for the non-moving party. See id. at 248; Reeves
v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 807 (11th Cir. 2010) (en banc). “If
reasonable minds could differ on the inferences arising from undisputed facts, then a court
should deny summary judgment.” Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d
1518, 1534 (11th Cir. 1992) (citing Mercantile Bank & Trust Co. v. Fidelity & Deposit Co.,
750 F.2d 838, 841 (11th Cir. 1985)). The court must view all the evidence, and all factual

8

Also, to the extent the newly rem em bered conversations are not recorded in the plaintiff's diary or
m entioned in her Rule 26 disclosures, this too presents a m atter of credibility. The diary and Rule 26
disclosures are not the sam e as prior sworn testim ony.
9

Regarding statem ents that the School District asserts m ischaracterize the deposition testim ony, the
court finds that these are m inor but to the extent that the plaintiff does m ischaracterize the deposition
testim ony of others in her declaration or m em orandum of law, the court has disregarded those statem ents
and relied on the record testim ony.
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inferences reasonably drawn from the evidence, in the light most favorable to the
nonmoving party. See Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 918 (11th Cir.
1993). A mere scintilla of evidence in support of the nonmoving party’s position will not
suffice to demonstrate a material issue of genuine fact that precludes summary judgment.
See Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at
252).
Racial Discrimination and Harassment
Stallworth claims in Count I that the School District engaged in racial discrimination
in violation of Title VII10 by Barrow’s conduct of racial harassment in the classroom and the
decision to place Stallworth on “no position” status by eliminating the classroom aid
position for the Crestview High School TAPP program. To survive summary judgment on
a harassment or hostile work environment claim, the plaintiff must present evidence raising
a genuine issue of fact regarding whether “‘the workplace is permeated with discriminatory
intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the
conditions of the victim's employment and create an abusive working environment.’” Miller
v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002) (quoting Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21 (1993)).

To meet this legal standard, a plaintiff must

demonstrate:
(1) that [s]he belongs to a protected group; (2) that [s]he has been subject
to unwelcome harassment; (3) that the harassment [was] based on a
protected characteristic of the employee . . .; (4) that the harassment was
sufficiently severe or pervasive to alter the terms and conditions of
employment and create a discriminatorily abusive working environment; and
(5) that the employer is responsible for such environment under either a
theory of vicarious or of direct liability.
Id. at 1275.
For purposes of summary judgment, the School District concedes that Stallworth
has established the first three components – she is in a protected group, she experienced
10

The School District assum es that plaintiff has also brought a claim under 42 U.S.C. § 1981, which
is analyzed the sam e as a Title VII claim and need not be separately analyzed. The court notes, however,
that the com plaint only cites Title VII and § 1981a, which is the dam ages provision applicable to Title VII
claim s, not an independent cause of action.
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unwelcome harassment, and that the harassment was based on her race. The School
District argues that she has not presented a question of fact regarding whether the
harassment was sufficiently severe and pervasive to have altered the terms or conditions
of her employment or whether the employer is responsible for such an environment. For
reasons that follow, the court disagrees.
Title VII’s prohibition of discrimination and harassment “is not a federal civility code.”
Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999) (en banc), cert. denied,
529 U.S. 1068 (2000). For this reason, the alleged harassing conduct must be both
subjectively and objectively sufficiently severe or pervasive as to alter an employee’s terms
or conditions of employment. Id. at 1246. The subjective component is satisfied if the
employee perceived the conduct as sufficiently severe or pervasive. Id. Stallworth has
demonstrated that she perceived the conduct as severe and pervasive for summary
judgment purposes. Thus, the court turns to the objective inquiry.
The objective component requires consideration of whether a reasonable person
would perceive the environment to be racially hostile or abusive given the totality of the
circumstances. Id. The Supreme Court and Eleventh Circuit have identified four factors
courts should consider in determining whether a situation is objectively hostile or abusive:
(a) "the frequency of the discriminatory conduct;" (b) the severity of the conduct; (c)
whether the conduct "is physically threatening or humiliating, or a mere offensive
utterance;" and (d) whether the conduct "unreasonably interferes with an employee's work
performance." Harris, 510 U.S. at 23; see also Mendoza, 195 F.2d at 1246. Courts
consider the alleged harassing conduct “both cumulatively and in the totality of the
circumstances.” Reeves, 594 F.3d at 808. Racially offensive language must rise “above
the level of off-handed comments in the course of casual conversation” to be actionable.
Miller, 277 F.3d at 1276-77. While conduct need not be “so extreme that it produces
tangible effects on job performance in order to be actionable,” there must be evidence that
the harassing conduct is frequent, severe, and humiliating in nature such that it interfered
with job performance. Id.
Stallworth argues that she suffered a “litany of abuse” each day at work, that the
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word “nigger” was directed at her frequently during Barrow’s reading from To Kill a
Mockingbird, that she was treated like a child and made to sit at a student’s desk, that she
was told to “fetch” the mail and required to crawl on the floor to plug in computers, that
Barrow spoke to her in a superior, rude, and hateful tone even in front of students, and that
Barrow’s actions such as rolling her eyes when speaking to Stallworth and making
Stallworth work in a dark classroom at the end of the day without the benefit of lights
cumulatively amounted to pervasive harassment based on race. The court finds that
Stallworth has created a question of fact regarding whether the conduct was objectively
hostile.

The conduct was frequent and humiliating, and there is evidence that it

unreasonably interfered with Stallworth’s job performance. There is evidence that the
students perceived a racist attitude on the part of Barrow and that Barrow treated the
students in a racially biased manner. There was also evidence that Barrow’s oral reading
of the novel was done in a purposefully harassing manner and that this harassment and
the overt racial epithets in the book were repeatedly directed at Stallworth in the classroom,
even after students had requested that the teacher alter the reading by saying “n” rather
than using the racial epithet, which she refused to do. The court agrees with Stallworth
that this conduct by her supervising teacher in front of the class was not isolated or
sporadic and, when combined with the other mean and humiliating incidents that occurred
daily, raises a question of fact on the objective component. See Miller, 277 F.3d 1276-77
(finding an objectively hostile atmosphere where “three to four times a day” a foreman and
others called plaintiff explicitly racially derogatory terms, plaintiff was forced to interact with
the abusers on a daily basis, and the derogatory names were used “in an intimidating
manner, shouting them at [plaintiff] during the course of berating him for his job
performance”); Mack v. ST Mobile Aerospace Eng'g, Inc., 195 Fed. Appx. 829, 837-38
(11th Cir. 2006) (unpublished)11 (finding a jury question existed where evidence showed
that racial graffiti had permeated the workplace premises for many years; the plaintiffs
discovered seven nooses in two years' time; employees and management directed
11

Under 11th Circuit Rule 36-2, unpublished cases m ay be cited as persuasive although not binding

authority.
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offensive words, jokes, and statements to minority employees; and employees were unable
to perform their jobs effectively or productively). But cf. McCann v. Tillman, 526 F.3d 1370,
1379 (11th Cir.) (holding two or three instances of racially derogatory language alone,
extending over a period of two years, was too sporadic and isolated to establish the
objective component of a hostile work environment claim), cert. denied, 129 S. Ct. 404
(2008). Viewing the totality of the circumstances in the light most favorable to the plaintiff,
the court finds that the record contains a question of fact regarding whether the alleged
conduct of Barrow was sufficiently severe or pervasive to demonstrate a hostile work
environment.
As to Stallworth’s claim of discriminatory treatment, Stallworth offers circumstantial
evidence of discrimination, which the court views through the familiar burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973).12 Under
the McDonnell Douglas framework, to demonstrate a prima facie case of discriminatory
treatment based on race, the plaintiff must show: (1) she is a member of a group protected
by Title VII; (2) she was qualified for the job or benefit at issue; (3) she was subject to an
adverse employment action; and (4) her employer treated similarly situated employees who
were not members of the class more favorably. See Smith v. Lockheed-Martin Co., 644
F.3d 1321, 1325 (11th Cir. 2011); Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008);
Gillis v. Ga. Dep’t of Corr., 400 F.3d 883, 887 (11th Cir. 2005). The burden to set forth "a
prima facie case is not onerous; it requires only that the plaintiff establish facts adequate
to permit an inference of discrimination." Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.
1997); see also Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254-55 (1981).
If the plaintiff establishes a prima facie case, the burden of production shifts to the
defendant to articulate a legitimate, nondiscriminatory reason for the employment decision.
McDonnell Douglas, 411 U.S. at 802. If a legitimate reason is articulated, the burden shifts
back to the plaintiff to show that the defendant's reason was pretextual. Id. At all times,
“the ultimate burden of persua[sion]” remains with the plaintiff. See St. Mary’s Honor Ctr.

12

Stallworth does not argue that she has presented direct evidence of discrim ination.

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v. Hicks, 509 U.S. 502, 507 (1993) (internal marks omitted).
For purposes of summary judgment, the School District concedes that Stallworth
has established the elements of the prima facie case with the exception of showing that
a similarly situated person outside the class was treated more favorably.

In her

declaration, Stallworth states that the other TAPP classroom assistant whose position was
not eliminated was white, but Stallworth admitted that the other assistant had “several
months” more seniority than Stallworth. In light of Foxworthy’s testimony that layoff
determinations are made based on seniority under the union contract, the School District
argues that Stallworth has not shown that a similarly situated comparator was treated more
favorably. The court disagrees. A relevant comparator must be an employee who is
similarly situated to the plaintiff “in all relevant respects.” Wilson v. B/E Aerospace, Inc.,
376 F.3d 1079, 1091 (11th Cir. 2004) (internal marks omitted). The Eleventh Circuit
explains that the comparator must be “nearly identical to the plaintiff to prevent courts from
second-guessing a reasonable decision by the employer.” Id. Here, the court finds that
the comparator is sufficiently similar to Stallworth for purposes of setting forth a prima facie
case with regard to the decision to eliminate Stallworth’s position.

Despite the

comparator’s “several months” of seniority, which renders her not similar with respect to
the final layoff determination according to Foxworthy’s description of the process, McKinley
made the decision to eliminate the Crestview TAPP classroom assistant position, and she
did not state that the decision was based on seniority. Instead, McKinley said she based
her decision on district-wide budget cuts and declining enrollment in the TAPP program.
Thus, the difference in seniority was not a factor that was material to McKinley’s decision,
and therefore, Stallworth has identified a similarly situated comparator whose position was
not eliminated. Thus, Stallworth has made out a prima facie case.
In response, the School District has set forth a legitimate, nondiscriminatory reason
for the decision to eliminate Stallworth’s position. As noted above, McKinley stated that
the decision was based on her determination that the classroom assistant position at
Crestview High School was not justified for the 2008-09 school year due to declining
enrollment in the program and in light of district-wide budget cuts. To avoid summary
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judgment, then, Stallworth must present evidence from which a jury reasonably could find
that “‘the proffered reason was not the true reason for the employment decision . . . either
by persuading the court that a discriminatory reason more likely motivated the employer
or indirectly by showing that the employer's proffered explanation is unworthy of
credence.’” Jackson v. Ala. State Tenure Comm'n, 405 F.3d 1276, 1289 (11th Cir.2005)
(quoting Burdine, 450 U.S. at 256).

Stallworth argues that McKinley’s reasons for

eliminating the TAPP classroom assistant position at Crestview High School, resulting in
Stallworth being “no positioned,” are inconsistent with the testimony of Foxworthy, who
stated that the layoff process focuses on seniority, not eliminating a particular position.13
The court sees no inconsistency. Foxworthy was the decision-maker regarding the layoffs,
and he testified that a person on the layoff list could “bump” another person who held a job
in the same category but had less seniority. He testified that in carrying out his duties, he
did not eliminate positions but focused on ensuring that the person with the most seniority
in a particular job category retained a job if possible. Nonetheless, there is no question
that McKinley had supervisory authority over the TAPP program itself and, consistent with
Foxworthy’s testimony, McKinley, not Foxworthy, made the decision to eliminate the
classroom assistant position at Crestview High School. McKinley said her decision was
not based not on seniority (which is a layoff consideration within Foxworthy’s duties) but
on budget concerns and declining enrollment in the TAPP program which she supervised.
Foxworthy’s testimony is not inconsistent with McKinley’s nor does it demonstrate that
McKinley’s reasons for eliminating the position are unworthy of credence.
Stallworth asserts that there is no evidence of the School District’s budget cuts other
than McKinley’s conclusory statement. The court finds that the record does include
evidence that the School District was having budget problems at the relevant time, despite
the fact that the actual budget is not in evidence. Foxworthy testified that there were “huge
layoffs that year” due to the School District “having a hard time making the budget.”

13
However, if McKinley had considered seniority, Stallworth still would have lost her position because,
as Stallworth adm its in her declaration, the other TAPP classroom assistant had several m onths seniority over
Stallworth.

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(Foxworthy’s Depo. at 94). The record shows that several employees were laid off at that
time, and Stallworth presents no evidence to the contrary. Stallworth also asserts that
there is no evidence of declining enrollment in the program to support McKinley’s decision
to cut her position. Stallworth presented student testimony that the TAPP class size in
Crestview High School had increased, not decreased, the year prior to McKinley’s decision
to eliminate the position. McKinley relied on a decline in the upcoming year’s enrollment
in the Crestview class, and Stallworth presents no evidence contradicting that decline or
calling into question the truth of this statement. There is likewise no evidence from which
to conclude that there was a greater decline in the enrollment level of the Ft. Walton TAPP
classroom for the following year. The court finds that Stallworth has not presented
evidence from which a jury could reasonably find that McKinley’s reason for eliminating the
Crestview TAPP classroom aid position was not true or that racial discrimination was more
likely than not the true reason for the decision. Thus, the School District is entitled to
summary judgment on Stallworth’s race discrimination claim insofar as it is based on
alleged discriminatory treatment.
Retaliation
In Count II, Stallworth asserts a claim of retaliation in violation of Title VII. See 42
U.S.C. § 2000e-3(a). A Title VII retaliation claim based on circumstantial evidence is
analyzed under the burden-shifting rubric of McDonnell Douglas described above, requiring
a prima facie showing of retaliation and an issue of fact regarding the employer’s
nondiscriminatory reason for the action to survive summary judgment. See Wright v.
Southland Corp., 187 F.3d 1287, 1305 (11th Cir. 1999). A prima facie case of retaliation
requires the plaintiff to show that (1) she engaged in an activity protected under Title VII;
(2) she suffered an adverse action; and (3) there was a causal connection between the
protected activity and the adverse employment action. See Crawford, 529 F.3d at 970-74
& n.14 (discussing Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006)). To
satisfy the third element, a plaintiff must establish that “the decision-makers were aware
of the protected conduct and that the protected activity and the adverse action were not
wholly unrelated.” McCann, 526 F.3d at 1376 (internal marks omitted). Generally, “close
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temporal proximity between the employee's protected conduct and the adverse
employment action is sufficient circumstantial evidence to create a genuine issue of
material fact about a causal connection.” Brungart v. BellSouth Telecomms., Inc., 231 F.3d
791, 799 (11th Cir. 2000), cert. denied, 582 U.S. 1037 (2001); see also Thomas v. Cooper
Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007). As in the discriminatory treatment
context, once the plaintiff establishes a prima facie case of retaliation, the burden shifts to
the employer to articulate a legitimate non-discriminatory reason for the adverse action and
the plaintiff must then create a question of fact as to whether the articulated reason is a
pretext for discrimination in order to survive a motion for summary judgment. See
Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001).
For purposes of summary judgment, the School District assumes Stallworth has
satisfied the first two elements of the prima facie case, but argues that there is no causal
connection between her complaints of discrimination and the adverse employment action
of being “no positioned.” The School District maintains that McKinley had no knowledge
of Stallworth’s protected activity. To the contrary, however, Stallworth stated in her
declaration that she had spoken with McKinley about her complaint of racial harassment
after surgery had been recommended for her knee, which would have been roughly three
to four months prior to McKinley’s decision to eliminate her position. Even assuming that
this is sufficient to make out a prima facie case, however, for reasons previously discussed,
Stallworth cannot demonstrate pretext.
To create a genuine issue of material fact on the question of pretext, the plaintiff
must “demonstrate weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could find them unworthy of credence.” Combs v. Plantations
Patterns, 106 F.3d 1519m 1538 (11th Cir. 1997). Although there remains a question of
fact regarding McKinley’s knowledge of Stallworth’s complaint, that knowledge and the
roughly three to four month proximity are insufficient to create a question of fact on whether
the decision was motivated by retaliatory animus. See Wascura v. City of South Miami,
257 F.3d 1238, 1245 (11th Cir. 2001) (stating 3 1/2 month period between knowledge of
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a complaint and termination does not, standing alone, show pretext); Deer v. Saltzman,
Tanis, Pittell, Levin & Jacobson, Inc., 2011 WL 2672286, at *10 (S.D. Fla. 2011) (stating,
“[w]hile close temporal proximity can establish causation, it is not enough, in and of itself
to raise a genuine issue of fact as to pretext”); see also Knight v. Fla. Dep’t of Transp., 291
Fed.Appx. 955, 960 (11th Cir. 2008) (unpublished) (stating “knowledge alone is not
necessarily sufficient once the analysis moves to the pretext stage”); McCoy v. City of
Shreveport, 492 F.3d 551, 562 (5th Cir. 2007) (holding pretext cannot be demonstrated on
a retaliation claim simply by showing that the decisionmaker knew of the protected conduct
and took an adverse action shortly thereafter). Stallworth has presented no evidence from
which to find that the nondiscriminatory reasons McKinley cited for eliminating the
Crestview classroom assistant position were untrue or unworthy of credence, nor has she
presented evidence from which to find that a retaliatory motive was more likely than not the
reason for the decision. The School District, therefore, is entitled to summary judgment
on Count II.
Workers’ Compensation Retaliation
Stallworth alleges in Count III of the amended complaint that the School District
eliminated her position, harassed her, intimidated her, and transferred her to positions
beyond her physical abilities in retaliation for her filing a workers’ compensation claim
under state law.14 Under Florida law, “[n]o employer shall discharge, threaten to discharge,
intimidate, or coerce any employee by reason of such employee's valid claim for
compensation or attempt to claim compensation under the Workers' Compensation Law.”
Fla. Stat. § 440.205. It is well settled that if an employer violates this section, the employee
may assert a cause of action for “retaliatory treatment.” Bifulco v. Patient Business & Fin.

14

The court exercises supplem ental jurisdiction over this state law claim because the factual basis
is intertwined with the issues over which the court has original jurisdiction. See 28 U.S.C. § 1367(a) (stating,
“in any civil action of which the district courts have original jurisdiction, the district courts shall have
supplem ental jurisdiction over all other claim s that are so related to claim s in the action within such original
jurisdiction that they form part of the sam e case or controversy”); see also Coker v. Morris, No. 3:07cv151,
2008 W L 2856699, at *6 (N.D. Fla. 2008).

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Servs., Inc., 39 So. 3d 1255, 1257 (Fla. 2010); see also Borque v. Trugreen, Inc., 389 F.3d
1354, 1357 (11th Cir.2004) (citing Smith v. Piezo Tech. & Prof'l Adm'rs., 427 So.2d 182,
183 -84 (Fla. 1983)). The standard for retaliation in this context is the same as under Title
VII. See Charlton v. Republic Servs. of Fla., L.P., No. 09cv22506, 2010 WL 2232677, at
*8 (S.D. Fla. 2010); Coker v. Morris, No. 3:07cv151, 2008 WL 2856699, at *7 n.21 (N.D.
Fla. 2008). To demonstrate a prima facie case, the plaintiff must show: (1) a statutorily
protected activity; (2) an adverse employment action;15 and (3) a causal connection
between the protected expression and the adverse action. See Edwards v. Niles Sales &
Serv., Inc., 439 F. Supp.2d 1202, 1228 (S.D. Fla. 2006) (citing Russell v. KSL Hotel Corp.,
887 So.2d 372, 379 (Fla. 3d DCA 2004)). If the employer offers a legitimate reason for the
discharge, the claim survives summary judgment if there is a question of fact on the issue
of pretext, that is, whether there is “sufficient evidence to permit a reasonable finder of fact
to conclude the employer’s proffered reasons were not what motivated its conduct, or that
the proffered reasons are not worthy of belief.” Ortega v. Eng’g Sys. Tech., Inc., 30 So.
3d 525, 529 (Fla. 3rd DCA 2010).
There is no dispute that Stallworth filed a workers’ compensation claim, that her
position was eliminated, and that McKinley and also Foxworthy knew of her injury and
complaints. Thus, she has set forth a prima facie case. However, because the School
District has set forth a legitimate nondiscriminatory reason for the employment action,
Stallworth must demonstrate a question of fact with regard to pretext. As to Stallworth’s
claim for workers’ compensation retaliation based on McKinley’s decision to eliminate her
position, Stallworth has failed to present evidence that the legitimate, nondiscriminatory
reasons McKinley stated for eliminating the position were pretextual, as previously
discussed.
Stallworth also claims retaliation based on intimidation or coercion by Palmer and

15

In the Title VII retaliation context, the required adverse action need not adversely affect an
em ployee’s conditions of em ploym ent, but it m ust have “a m aterially adverse effect on the plaintiff, irrespective
of whether it is em ploym ent or workplace-related.” Crawford, 529 F.3d at 973 (citing Burlington, 548 U.S. at
68).
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Foxworthy’s ultimate decision to quit offering her positions within the School District. As
Stallworth asserts, the Florida workers’ compensation scheme does support a cause of
action for retaliatory intimidation or coercion. See Chase v. Walgreen Co., 750 So. 2d 93,
95-98 (Fla. 5th DCA 2000) (holding Fla. Stat. § 440.205 is not limited to claims of
retaliatory discharge but includes claims for retaliatory intimidation or coercion even where
there has been no discharge and in situations where the statute does not otherwise provide
a remedy). The court stated in Chase that the Florida “legislature intends to protect the
employee’s access to [a] worker’s compensation remedy and not allow an employer’s
intimidation or coercion to discourage filing valid claims.” Id. at 97-98. The court finds that
Stallworth has created a question of fact regarding causation and pretext as to the conduct
of Palmer and Foxworthy with regard to her workers’ compensation claim. Both Palmer
and Foxworthy knew of her workers’ compensation claim, and Foxworthy knew of her
complaints regarding Palmer’s conduct. Palmer allegedly made comments that were
intimidating and threatening in connection with Stallworth’s injury, her return to work after
surgery, and her need to see the doctor again. Palmer reported to Foxworthy, who
admittedly stopped offering Stallworth positions and refused to consider her own
complaints that she was physically incapable of performing the jobs she was offered,
relying instead on the doctor reports provided by Palmer.16 Accordingly, questions of fact
remain on this issue and summary judgment is not appropriate on Count III with respect
to the conduct of Palmer and Foxworthy.
Accordingly, it is hereby ORDERED that Defendant’s motion for summary judgment
(doc. 76)17 is GRANTED on the disparate treatment claim of Count I, the Title VII retaliation
claim of Count II, and the workers’ compensation retaliation claim based on the elimination
16

But cf. Coker v. Morris, No. 3:07cv151, 2008 W L 2856699, at *7 n.21 (N.D. Fla. 2008) (citing
Montes de Oca v. Orkin Exterminating Co., 692 So. 2d 257, 259 (Fla. 3d DCA 1997), rev. denied, 699 So. 2d
1374 (Fla. 1997), and noting that a claim that the em ployee was not offered a job she was physically capable
of perform ing is the type of dispute that is properly brought before the judge of com pensation claim s under
Fla. Stat. § 440.15(6)). The court finds that this dispute is not appropriate for the judge of com pensation
claim s because there is no ongoing dispute with the em ployer for workers' com pensation benefits due, and
any such claim would not be appropriate in this forum .
17

The Clerk is directed to term inate the first-filed m otion for sum m ary judgm ent (doc. 75) as m oot.

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of the classroom assistant position articulated in Count III. The motion is DENIED on the
hostile work environment claim of Count I and the workers’ compensation retaliation claims
of coercion and intimidation based on the conduct of Palmer and Foxworthy in Count III.
DONE AND ORDERED this 30th day of September, 2011.

s/

M. Casey Rodgers

M. CASEY RODGERS
CHIEF UNITED STATES DISTRICT JUDGE

Case No. 3:09cv404/MCR/CJK