HALL v. DOUGHERTY COUNTY SCHOOL SYSTEM

Filing 18

ORDER granting 12 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE LESLIE J ABRAMS on 08/17/2017 (mdm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
MATTHEW L. HALL,
Plaintiff,
v.
DOUGHERTY COUNTY SCHOOL
SYSTEM,
Defendant.

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CASE NO.: 1:15-CV-189 (LJA)

ORDER
Before the Court is Defendant’s Motion for Summary Judgment (Doc. 12). 1 For the
following reasons, Defendant’s Motion is GRANTED.
BACKGROUND 2
Defendant Dougherty County School System hired Plaintiff Matthew Hall, a white
male, as a teacher on July 31, 2013. (Doc. 16-1, ¶¶ 1-2). Plaintiff was assigned to teach at
Albany Early College. Id. at ¶ 2. Plaintiff was the only white male teacher at Albany Early
College for the 2013-2014 and 2014-2015 school years. Id. at 64. Barbara Harvey was the
Principal and Cartisha Lewis was an administrative assistant. Id. at ¶ 3. Harvey and Lewis are
both black females. Id. at ¶ 30.

Defendant originally filed a Motion for Summary Judgement at Doc. 10, and amended it at Doc. 12 on the same day.
When the Court refers to “Defendant’s Motion,” both Doc. 10 and Doc. 12 are included.

1

The relevant facts are derived from the Complaint (Doc. 1), Defendant’s Answer to the Complaint (Doc.
5), Defendant’s Statement of Undisputed Facts (Doc. 12-1), Plaintiff’s Response to Defendant’s
Statement of Undisputed Facts (Doc. 16-1), and the record in this case. Where relevant, the factual summary
also contains undisputed and disputed facts derived from the pleadings, the discovery and disclosure materials
on file, and any affidavits, all of which are construed in the light most favorable to Plaintiff as the
nonmoving party. See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

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I.

2013-2014 School Year
On August 20, 2013, Plaintiff was diagnosed with Trigeminal Neuralgia, a condition

that causes severe pain in the head and the jaw. Plaintiff informed both Harvey and Lewis of
his diagnosis. (Doc. 16-3, ¶ 5). After informing them of the diagnosis, Plaintiff claims that
Harvey and Lewis “began a campaign of harassment and abuse” against him. (Doc. 16-1, ¶
27). The alleged harassment consisted of:
• “General treatment,” including not being told hello in the morning and the way
Defendants “looked at” Plaintiff in meetings (Doc. 16-4 at 58:2-5, 11-15)
• A comment Harvey made during a faculty meeting about being treated differently as a
female (Id. at 74:6-10)
• Lewis asking Plaintiff “What are you doing up here using the bathroom during
transition?” when Plaintiff went to use the bathroom in the front office during class
transition (Id. at 58:6-10)
• “Having stuff said” to him while heating up his food (Id. at 59:3-4)
• “Belligerent conversations” when called into Harvey’s office (Id. at 59:4-5)
• Lewis asking Plaintiff “What do you want me to do about it?” when he called in sick
(Id. at 18:6-9)
• Being reprimanded for not doing “something that was associated with a particular
extra-curricular activity with students” (Id. at 76:21-25)
• Notifying Harvey that he needed to leave work at 3:45 p.m. for a doctor’s
appointment, but not being allowed to leave until 4:00 p.m. (Doc. 16-1 ¶ 4)
Plaintiff did not observe any other employees taking sick leave or how Harvey
responded to their requests. Id. at 19:11-20:19.
II.

2014-2015 School Year
During the 2013-2014 school year, Plaintiff taught Economics and American

Government. Id. at 23. At the start of the 2014-2015 school year, Plaintiff was assigned to
teach Psychology. Id. at ¶ 8. Plaintiff learned of his assignment after the school year began
from his students rather than from the school’s administration. (Doc. 16-3, ¶ 19).
Accordingly, Plaintiff was not able to properly prepare or obtain appropriate materials to
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teach the psychology course. Id. After learning that Plaintiff had been unaware of his
assignment, Harvey requested a meeting to discuss the class. (Doc. 16-1, ¶ 9). Plaintiff
responded to Harvey’s request with an e-mail stating that, while he was surprised to learn of
the assignment, he would teach the class to the best of his ability and did not express any
reservations. Id.
Around August 14, 2014, Lewis came to Plaintiff’s classroom and informed him that
she was checking the phone extensions. Id. at ¶ 11. She asked him to dial Harvey’s extension
number. Id. Harvey answered the phone, confirmed that they were checking phone
extensions, and then told Plaintiff that he “needed to be doing his job” because she “walked
by his room and it looked like he wasn’t doing what he was supposed to be doing.” Id.
Plaintiff never heard Harvey telling other teachers that they needed to be doing their jobs
nor did he hear other teachers complain about similar comments. Id. at ¶ 12. Although
Plaintiff does not specify what he said or what conduct he was referring to, Plaintiff
complained internally to the Assistant Principal about the treatment he received from
Harvey and Lewis. Id. at ¶ 39.
Plaintiff sought psychological treatment because of “Harvey and Lewis’ harassment
and abuse” and was evaluated on August 18, 2014. Id. at ¶¶ 13, 46. The psychologist
recommended that Plaintiff take sick leave for the remainder of the week, August 18-22,
2014. Id. Harvey approved the leave and requested medical documentation. (Doc. 11-6). On
Sunday, August 24, 2014, the psychologist sent Plaintiff an e-mail recommending that his
excused medical leave be extended for an additional week, through August 29, 2014. (Doc.
16-1 at ¶ 14). Plaintiff notified Harvey of this at 10:25 p.m. on August 24, 2014 via e-mail. Id.
The next morning, Harvey responded to Plaintiff’s e-mail with the following:
I regret to hear that you are still mentally not feeling well, but know this is extreme
late notice of [sic] another week absence your teaching position. As I attempt to
surmise your circumstances, please understand my position in the matter. I am
concerned that you have not called to communicate the severity of your situation. I
am equally concerned of your -untimely notification. I have not received your first
medical excuse which you indicated was faxed to me on 8/18/14 and for this reason
I am copying Dr. Young, Human Resource Director and Mr Jack Willis, Asst
Superintendent. To prevent abandonment of employment, documentation of
medically required absence must be provided today from your attending physician.
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Otherwise, I will have no recourse but to begin this process. I do not want to assume
the worst or exasperate your mental status but I really need to speak with you about
this situation and ask that you call me. Again, I really want to understand and do what
is in the best interest for you and our students. I look forward to hearing from you
today.
(Doc. 11-6). Plaintiff also informed DCSS Superintendent David Mosely of his need for
medical leave on August 24, 2015, and sent Mosely medical documentation of his mental
condition. (Docs. 16-3, ¶¶ 26-27; 16-5). Plaintiff did not return to work, and subsequently
sought to take FMLA leave for his mental condition.
On August 25, 2014, Assistant Superintendent Jack Willis called Plaintiff in response
to messages Plaintiff left with Mosley’s secretary. (Doc. 16-1, ¶ 15). Plaintiff told Willis that
he would like to speak with Mosley to make “lawfully protected disclosures.” Id. Willis told
Plaintiff that Mosley would not be back in the office until September 2, 2014. Id. On
September 2, 2014, Mosley e-mailed Plaintiff to indicate that he was back in the office and
available if Hall would like to speak with him. Id. at ¶ 16. Plaintiff responded with the
following by e-mail:
I am still under the weather but I do indeed want to meet with you. As you may
already know I have requested the services of legal counsel through the Professional
Association of Georgia Educators (PAGE). I have been assigned an attorney in the
area and spoke with them briefly this morning on the phone about contacting the
DCSS Attorney Tommy Coleman and setting up the conference. The conversation
and request I made on the phone with counsel was done prior to receiving your
message where you stated that you were back in the office today. I am prepared to
meet with you but given the circumstances and the events that have unfolded over
the last two weeks I am afraid that I will not be able to meet with you alone. In other
words, I would like to have legal representation and/or an advocate/witness with me
when any meeting does ensue. I will be in contact with the attorney that has been
assigned to me today to see when they would be able to be in attendance and will be
back in touch with you as soon as possible.
(Doc. 11-7).
On September 18, 2014, Plaintiff sent Mosely an e-mail, in which he made what he
referred to as “lawfully protected disclosures,” complaining of “discrimination via personal
harassment, intentional discrimination, workplace bullying, intimidation on the job, nepotism
on the job site between two related persons collectively acting together thus producing a
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hostile work environment, and as it pertains to gender, race, disability, and retaliation.” (Doc.
16-7). The e-mail also indicated that he sent his FMLA paperwork to the DCSS benefits
office on September 18, 2014, and that he sought FMLA leave retroactive to September 2,
2014. Id. Plaintiff states that he received an e-mail on September 25, 2014 from Shirley Lilly,
the DCSS Leave Clerk, in which she said that she “received paperwork…(the medical
certification form and short term disability form-which I will file for you.)” (Doc. 11-9 at 1).
Plaintiff’s FMLA leave was approved through December 2, 2014. (Docs. 16-4 at 4546; Doc. 12-1, ¶ 18). Plaintiff, however, was not informed that his leave had been approved
until he called the DCSS Leave Clerk, Ms. Lilly, on October 29, 2014. Ms. Lilly confirmed,
during a phone conversation with Plaintiff, that his leave was in effect through December 2,
2014. (Doc. 16-4 at 45-46). Despite this, Plaintiff submitted a ten page document to DCSS
entitled “Constructive Discharge/ Wrongful Termination,” in which he formally resigned
from his position because his complaints of discrimination and harassment had “fallen on
deaf ears” and he could “no longer tolerate the employment scenario and conditions.” (Doc.
16-18 at 10). Plaintiff explained that, despite being told that his leave was approved, he did
not trust that assurance because of the minutes he discovered from a DCSS board meeting
held on October 6, 2014. (Doc. 16-9). Attached to the minutes of the meeting was a
memorandum by Mosley recommending staff for hire. Id. at 4. On the memorandum, John
Tibbits was listed as a new hire for a position teaching Economics/ American Government
to replace Matthew Hall. Id. Also on this memorandum was a list of employees on leave,
which did not include Plaintiff. Id. Plaintiff was at no time informed that his employment
had been terminated. (Doc. 16-1, ¶ 21).
PROCEDURAL HISTORY
On December 1, 2015, Plaintiff commenced this action against Defendant. (Doc. 1).
Defendant moved for summary judgment on December 15, 2016 (Doc. 12), and Plaintiff
responded on January 19, 2017. (Doc. 16). Defendant timely replied on February 2, 2017.
(Doc. 17). As such, Defendant’s Motion is now ripe for review. See M.D. Ga. L.R. 7.3.1(a).

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SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56 allows a party to move for summary judgment
when the party contends no genuine issue of material fact remains and the party is entitled to
judgment as a matter of law. “Summary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any, 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.” Maddox v. Stephens, 727 F.3d 1109, 1118 (11th Cir.
2013). “A genuine issue of material fact does not exist unless there is sufficient evidence
favoring the nonmoving party for a reasonable jury to return a verdict in its favor.” Grimes v.
Miami Dade Cnty., 552 F. App’x 902, 904 (11th Cir. 2014) citing Chapman v. AI Transp., 229
F.3d 1012, 1023 (11th Cir. 2000). “An issue of fact is ‘material’ if it is a legal element of the
claim under the applicable substantive law which might affect the outcome of the case.”
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). “It is ‘genuine’ if the record taken as a whole could lead a rational
trier of fact to find for the nonmoving party.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994,
998 (11th Cir. 1992) citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
The movant bears the initial burden of showing, by reference to the record, that there
is no genuine issue of material fact. See Celotex, 477 U.S. at 323 (1986); Barreto v. Davie
Marketplace, LLC, 331 F. App’x 672, 673 (11th Cir. 2009). The movant can meet this burden
by presenting evidence showing there is no genuine dispute of material fact, or by
demonstrating to the district court that the nonmoving party has failed to present evidence
in support of some element of its case on which it bears the ultimate burden of proof. See
Celotex, 477 U.S. at 322-24.
Once the movant has met its burden, the nonmoving party is required “to go beyond
the pleadings” and identify “specific facts showing that there is a genuine issue for trial.” Id.
at 324. To avoid summary judgment, the nonmoving party “must do more than summarily
deny the allegations or show that there is some metaphysical doubt as to the material facts.”
Matsuhita, 475 U.S. at 586 (citations and internal quotations omitted). Instead, the
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nonmovant must point to evidence in the record that would be admissible at trial. See Jones v.
UPS Ground Freight, 683 F.3d 1283, 1294 (11th Cir. 2012) quoting Macuba v. Deboer, 193 F.3d
1316, 1322 (11th Cir. 1999) (noting that hearsay may be considered on a motion for
summary judgment only if it “could be reduced to admissible evidence at trial or reduced to
admissible form”). Such evidence may include affidavits or declarations that are based on
personal knowledge of the affiant or declarant. See Fed. R. Civ. P. 56(c)(4).
DISCUSSION
Plaintiff alleges the following claims: (1) race discrimination; (2) gender
discrimination; (3) disability discrimination; (4) hostile work environment; (5) retaliation; and
(6) violations of the Family Medical Leave Act (FMLA).
I.

Discrimination
Title VII makes it unlawful for employers “to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of employment, because of
such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The
Americans with Disabilities Act (ADA) makes it unlawful for employers to “discriminate
against a qualified individual on the basis of disability in regard to job application
procedures, the hiring, advancement, or discharge of employees, employee compensation,
job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. §
12112(a). 3 Plaintiff argues that Defendant violated Title VII and the ADA by terminating
Plaintiff’s employment because of his race, gender, and nerve condition. Disparate treatment
claims under Title VII and the ADA require proof of discriminatory intent either through
direct or circumstantial evidence. See E.E.O.C. v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1286
(11th Cir. 2000) (addressing Title VII claims); Wascura v. City of South Miami, 257 F.3d 1238,
1242 (11th Cir. 2001) (addressing ADA claims). “Direct evidence is evidence that establishes
the existence of discriminatory intent behind the employment decision without any inference

Plaintiff also brings his disability claim under the Rehabilitation Act, 29 U.S.C. § 794, which prohibits discrimination by
employers receiving federal funds. Rehabilitation Act cases are governed by the same standards as ADA cases, so the
Court will not separately address Plaintiff’s claims under the Rehabilitation Act. See Musgrove v. Vilsack, 173 F.Supp.3d
1337, 1345 (M.D. Ga. 2016); Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005).

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or presumption.” Joe’s Stone Crab, 220 F.3d at 1286. Plaintiff presented no direct evidence in
this case.
When there is no direct evidence of discrimination in Title VII and ADA cases, a
plaintiff may prove discrimination through circumstantial evidence, using the burden shifting
framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) or the mosaic
theory set forth in Smith v. Lockheed-Martin Corp., 644 F.3d 1321 (11th Cir. 2011). McCann v.
Tillman, 526 F.3d 1370, 1373 (11th Cir. 2008) (addressing Title VII claims); Wascura, 257 F.3d
at 1242 (addressing ADA claims). To establish a prima facie case for Title VII claims under
the McDonnell-Douglas analysis, Plaintiff must show that: (1) he is a member of a protected
class; (2) he was subject to adverse employment action; (3) his employer treated similarly
situated white employees more favorably; and (4) he was qualified to do the job. McCann,
526 F.3d at 1373. To establish a prima facie case for ADA claims under the McDonnellDouglas analysis, Plaintiff must show that: (1) he has a disability; (2) he is otherwise qualified
for the position; and (3) he was subjected to unlawful discrimination as a result of his
disability. Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005). To establish the third
element in ADA cases, an individual must show “that he has suffered an adverse
employment action because of his disability” and that “his employer treated similarly situated
employees outside of his protected class more favorably than he was treated.” Id.; Wolfe v.
Postmaster General, 488 F. App’x. 465, 468 (11th Cir. 2012). With respect to both Plaintiff’s
Title VII claims and his ADA claims, the parties do not dispute that Plaintiff was part of a
protected class, disabled, or that he was qualified for his position. At issue in both the Title
VII claims and the ADA claims is whether or not Plaintiff was subject to an adverse
employment action and whether he was treated less favorably than similarly situated
individuals.
To establish an adverse employment action, the plaintiff must either show: 1) an
“ultimate employment decision[] such as termination, failure to hire or demotion;” or 2)
conduct falling short of an ultimate employment decision that “in some substantial way,
alter[s] the employee’s compensation, terms, conditions, or privileges of employment,
deprive[s] him or her of employment opportunities, or adversely affect[s] his or her status as
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an employee.” Crawford v. Carroll, 529 F.3d 961, 970-71 (11th Cir. 2008). Plaintiff argues that
he suffered an adverse employment action by being “constructively discharged” from DCSS.
Plaintiff has not set forth evidence sufficient to establish that he was constructively
discharged. “A constructive discharge occurs when a discriminatory employer imposes
working conditions that are so intolerable that a reasonable person in the employee’s
position would have been compelled to resign.” Fitz v. Pugmire Lincoln-Mercury, Inc., 348 F.3d
974, 977 (11th Cir. 2003). “Mere suspicion of an unsubstantiated plot is not an intolerable
employment condition,” id. at 978, and “Title VII does not protect employees from stressful
workplace environments.” Medearis v. CVS Pharmacy, 646 F. App’x 891, 898 (11th Cir. 2016).
In Palmer v. McDonald, the Eleventh Circuit found that the plaintiff had not been
constructively discharged when the “supervisor hastily gave verbal instructions, yelled at him,
scolded him, laughed out loud by his cubicle, and did not help him first thing in the
morning” 624 F. App’x 699, 704 (11th Cir. 2015). Similarly, the Eleventh Circuit concluded
that the plaintiff in Medearis v. CVS Pharmacy had not been constructively discharged when
his supervisor laughed at his complaints about the workplace and told him on one occasion
that he would be fired within the year. 646 F. App’x 891, 898 (11th Cir. 2016). In contrast,
the court held that the plaintiffs in Akins v. Fulton County, Georgia were constructively
discharged when their work duties were removed, they were excluded from meetings, their
supervisor instructed coworkers not to talk to them, they were required to publically display
their time sheets, and the supervisor accused one of them of engaging in illegal behavior. 420
F.3d 1293, 1302 (11th Cir. 2005).
Similar to Palmer and Medearis, Plaintiff complains that Harvey and Lewis scolded him,
laughed at him, and made his working atmosphere unpleasant. However, Plaintiff has
presented no evidence that rises to the level of having his work duties removed, being
publically shamed, or being excluded from workplace meetings. Although “employees may
be constructively discharged by a demeaning demotion or transfer,” Riley v. Birmingham Bd. of
Educ., 154 F. App’x 114, 117 (11th Cir. 2005), Plaintiff’s reassignment to teaching
psychology is insufficient to the meet the constructive discharge standard because Plaintiff
kept the same job title and general teaching duties. See Washington v. Kroger Co., 218 F. App’x
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822, 827 (11th Cir. 2007) (finding that plaintiff was not constructively discharged when
transferred from meat department to bagging department in part because job title as store
clerk remained the same); Booth v. Houston, 58 F.Supp.3d 1277, 1295 (M.D. Ala. 2014)
(finding that plaintiff was constructively discharged when “supervising assistant district
attorney with almost a decade of experience prosecuting felony cases” was demoted to
“part-time, non-supervisory prosecutorial work in juvenile court”).
Moreover, Plaintiff’s conclusion that he would be fired based on Harvey’s e-mail, the
lack of investigation of his complaints, and the hiring of Tibbits was unreasonable, and thus
does not support his alleged constructive discharge. “Part of an employee’s obligation to be
reasonable is an obligation not to assume the worst, and not to jump to conclusions too fast.”
Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536, 1539 (11th Cir. 1987). Furthermore, “the
possibility that a plaintiff may not remain employed is not itself enough to place a reasonable
person in the position of ‘quit or be fired.’” Rowell v. BellSouth Corp., 433 F.3d 794, 806 (11th
Cir. 2005). Even if the fear of imminent dismissal were a basis for constructive discharge,
Plaintiff has not set forth any objective evidence supporting his assumption that he would be
terminated at some point in the near future. In stark contrast to his assumptions are the legal
protections for teachers encoded in Georgia law. Georgia law requires written notice of the
charges for discharge of a teacher to be given ten days before a date set for a termination
hearing. O.C.G.A. § 20-2-940. Plaintiff had sought legal representation and was assigned a
representative from the Professional Association of Georgia Educators, who certainly would
have been aware of this statute. Accordingly, it was unreasonable for Plaintiff to resign in
anticipation of a summary termination. Furthermore, before resigning, Plaintiff confirmed
with Ms. Lilly that his FMLA leave had been approved. Given the statutory notice
requirement and Plaintiff’s confirmation of his approved leave, it was not reasonable to
assume that, because of an e-mail from the school principal asking for medical
documentation or a reference to the hiring of a new teacher, 4 Plaintiff was about to be fired.
See Foshee v. Ascension Health-IS, Inc., 384 F. App’x 890, 892 (11th Cir. 2010) (finding no
constructive discharge when the employer posted the plaintiff’s position and refused to meet
Although Defendant does not explain why Tibbits was hired, given that Plaintiff taught psychology at the time, there is
not enough evidence that Tibbits was hired to replace Plaintiff as an American Government and Economics teacher.
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with her). Plaintiff also had no indication or evidence that he would not be reinstated to an
equal position when he returned from FMLA leave. See Garner, 807 F.2d at 1539.
Accordingly, Plaintiff has failed to establish that he was constructively discharged.
Even had Plaintiff established that he was constructively discharged, Plaintiff has still
failed to establish a prima facie case under Title VII and the ADA because he did not prove
that he was treated differently from similarly situated black, female, or able-bodied
individuals. Plaintiff does not identify any individual comparators. Rather, he purports to
identify all other teachers at Albany Early College as comparators because he was the only
white male teacher. Such general allegations are not sufficient. In Trask v. Sec’y, Dep’t of
Veterans Affairs, 822 F.3d 1179, 1192 (11th Cir. 2016), the Court held that “the plaintiff and
the employee they identify as a comparator must be similarly situated in all relevant respects.
The comparator must be nearly identical to the plaintiff to prevent courts from secondguessing a reasonable decision by the employer.” Plaintiff has not provided sufficient, or
even any, specific details to allow the Court to determine if the comparators are nearly
identical. Moreover, with regard to his claim that he was discriminated against based on his
disability, Plaintiff does not specify whether all other teachers were able-bodied. Nor does
Plaintiff submit any evidence that anyone was granted leave or benefits in circumstances
where he was not. That Plaintiff states that he never saw or heard of anyone being subject to
the same treatment is not proof that it did or did not happen.
Furthermore, Plaintiff’s broad comparison of himself with every other teacher at
Albany Early College is insufficient to show that he was similarly situated to any individual as
the Eleventh Circuit has held that individuals are not similarly situated when they both
engaged in misconduct but the degree of misconduct varied or when the employees had
significantly different lengths of relevant experience in their positions. See Burke-Fowler, 447
F.3d at 1325; Beard v. 84 Lumber Co., 206 F. App’x 852, 857 (11th Cir. 2006). Without more
detail about individual teachers, it is impossible for the Court to determine that Plaintiff was
similarly situated to any of them. Given this lack of specificity, combined with Plaintiff’s
admission that he never personally heard Harvey reprimanding other teachers and was not

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aware of how Harvey responded to other teachers’ requests for sick leave, Plaintiff has failed
to identify any comparators.
Even though Plaintiff has failed to establish a prima facie case of discrimination using
the McDonnell-Douglas framework, the framework is not the “sine qua non” for a plaintiff to
survive a summary judgment motion.” Smith, 644 F.3d 1321, 1328 (11th Cir. 2011). “Rather,
the plaintiff will always survive summary judgment if he presents circumstantial evidence
that creates a triable issue concerning the employer’s discriminatory intent.” Id. “A triable
issue of fact exists if the record, viewed in a light most favorable to the plaintiff, presents a
convincing mosaic of circumstantial evidence that would allow a jury to infer intentional
discrimination by the decisionmaker.” Id. The Eleventh Circuit recognizes at least three
categories of circumstantial evidence that may be relevant: “(1) suspicious timing, ambiguous
statements, similar behavior directed at other members of the protected group, and other
bits and pieces from which an inference of discriminatory intent might be drawn; (2)
systematically better treatment of those outside the protected class; and (3) pretext in the
employer's justification.” Smith v. City of New Smyrna Beach, 588 F. App’x 965, 976 (11th Cir.
2014).
For example, the Eleventh Circuit has found sufficient circumstantial evidence where
derogatory comments were made about women and specific male employees were not
disciplined for using the same language that resulted in disciplinary action against the female
plaintiff. See Smith, 588 F. App’x at 976. The only piece of circumstantial evidence that
Plaintiff identifies relating to race, gender, or disability is Harvey’s comment that she had, in
the past, been treated differently as a woman. “[O]utside of his own conclusory say-so,”
Plaintiff fails to tie this one comment, made to a group of teachers at a faculty meeting, to
any intent to discriminate against him personally or against other male teachers. Flowers, 803
F.3d at 1137. Furthermore, Plaintiff does not identify any statements or actions by Harvey,
Lewis, or any other DCSS employee related to his race or nerve condition. Accordingly,
Plaintiff has failed to establish discriminatory intent and summary judgment on Plaintiff’s
claims of race, gender, and disability discrimination is appropriate.

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II.

Hostile Work Environment
“A hostile work environment claim under Title VII is established upon proof that

‘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 Systems, Inc., 510 U.S. 17, 21 (1993)). To establish a
hostile work environment claim, the plaintiff must show: “(1) that he belongs to a protected
group; (2) that he has been subject to unwelcome harassment; (3) that the harassment must
have been 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 a theory of vicarious or direct liability.” Miller, 277 F.3d at 1275.
Plaintiff has failed to show that the alleged harassment by Harvey and Lewis was
based on his race or gender. Plaintiff cannot identify one instance, other than Harvey’s
comment about being treated differently as a woman, that was in any way related to
Plaintiff’s identity as white or male. Thus, Plaintiff has failed to establish a prima facie case
of hostile work environment. See Enwonwu v. Fulton-Dekalb Hosp. Auth., 286 F. App’x 586,
602 (11th Cir. 2008) (holding that the plaintiff failed to establish a prima facie case of hostile
work environment based upon her race and national origin when no comments were made
about her race or national origin).
III.

Retaliation
Title VII prohibits discrimination against employees who have “opposed any practice

made an unlawful employment practice by this subchapter” or who have “made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding, or hearing
under this subchapter.” 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation,
Plaintiff must show that: “(1) [he] participated in a statutorily protected activity; (2) [he]
suffered a materially adverse employment action; and (3) there is a causal connection
between the two.” Evans v. Books-A-Million, 762 F.3d 1288, 1298 (11th Cir. 2014). Plaintiff
engaged in statutorily protected activity by seeking FMLA leave. However, as discussed
13

above, Plaintiff’s cannot show that he suffered “a materially adverse employment action.”
The same standard for adverse employment actions is used in both Title VII discrimination
and retaliation claims. Crawford, 529 F.3d at 970-71. Accordingly, summary judgment on
Plaintiff’s claim for retaliation is appropriate. See Durley v. APAC, Inc., 236 F.3d 651, 657-58
(11th Cir. 2000); Beltrami v. Special Counsel, Inc., 170 F. App’x 61, 62-63 (11th Cir. 2006).
IV.

Family Medical Leave Act
The Family Medical Leave Act (FMLA) grants twelve weeks of unpaid leave for any

eligible employee suffering from “a serious health condition that makes the employee unable
to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). “To
protect this right, the FMLA allows employees to bring a private cause of action for
interference or retaliation.” Hurley v. Kent of Naples, Inc., 746 F.3d 1161, 1166 (11th Cir. 2014).
Plaintiff claims both that Defendant interfered with his right to be restored to the position
of employment held by the employee when his FMLA leave commenced and that Defendant
retaliated against him “when he was replaced and ultimately terminated.” (Doc. 16 at 13-14).
a. Interference
In order to state a claim for interference, an employee need only demonstrate “that
she was denied a benefit to which she was entitled under the FMLA and that she has been
prejudiced by the violation in some way.” Evans v. Books-A-Million, 762 F.3d 1288, 1295 (11th
Cir. 2014). An employee “does not have to allege that his employer intended to deny the
right; the employer’s motives are irrelevant.” Strickland v. Water Works and Sewer Bd. of City of
Birmingham, 239 F.3d 1199, 1208 (11th Cir. 2001). Plaintiff alleges that Defendant denied his
substantive FMLA right to reinstatement.
Employees on FMLA leave have the right, on return from such leave, “to be restored
by the employer to the position of employment held by the employee when the leave
commenced” or “to be restored to an equivalent position with equivalent employment
benefits, pay, and other terms and conditions of employment.” 29 US.C. § 2614(a)(1);
Strickland, 239 F.3d at 1208. Though Plaintiff did not receive written notice, he confirmed
that his approved FMLA leave extended through December 2, 2014. Yet Plaintiff resigned
on October 31, 2014. Having resigned more than a month before his leave expired, Plaintiff
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cannot prove that Defendant denied him reinstatement to his position or an equivalent
position. That minutes from a board meeting indicate the hiring a replacement to teach
Plaintiff’s classes does not indicate whether such a replacement was permanent, or whether
Plaintiff would be assigned to an equivalent position upon his return. Accordingly, summary
judgment is appropriate on Plaintiff’s claim for interference under the FMLA.
b. Retaliation
To establish retaliation under the FMLA, Plaintiff must either present direct evidence
of the employer’s retaliatory intent, or use circumstantial evidence according to the burden
shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Strickland, 239 F.3d at 1209. Plaintiff did not present any direct evidence of retaliation.
Therefore, to make a prima facie case of retaliation, Plaintiff must establish that 1) he
engaged in a statutorily protected activity; 2) he suffered an adverse employment decision;
and (3) the decision was causally related to the protected activity. Id. Plaintiff engaged in a
statutorily protected activity by taking FMLA leave; however, as discussed above, Plaintiff
has failed to set forth evidence sufficient to establish constructive discharge. Accordingly, as
Plaintiff does not identify any other adverse employment decisions, summary judgment is
appropriate on Plaintiff’s claim of retaliation under the FMLA.
CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment (Doc. 12) is
GRANTED.
SO ORDERED, this 17th day of

August 2017.

/s/ Leslie J. Abrams
LESLIE J. ABRAMS, JUDGE
UNITED STATES DISTRICT COURT

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