Powell v. MUSCOGEE COUNTY SCHOOL DISTRICT

Filing 37

ORDER granting in part and denying in part 20 Motion for Summary Judgment; denying 24 Motion to Strike; denying 36 Motion to Stay. Ordered by US DISTRICT JUDGE CLAY D LAND on 01/09/2019. (CCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
EDDIE POWELL,

*

Plaintiff,

*

vs.

*

MUSCOGEE COUNTY SCHOOL
DISTRICT,

*

CASE NO. 4:17-CV-185 (CDL)
*
Defendant.
*
O R D E R
Eddie Powell claims that his employer, the Muscogee County
School

District,

retaliated

against

him

for

complaining

of

racial discrimination, in violation of 42 U.S.C. § 1981,1 and for
reporting that a teacher failed to inform him that a student had
been injured at school, in violation of Georgia’s Whistleblower
Act,

O.C.G.A. § 45-1-4.

Powell

also

asserted

discrimination

claims under § 1981 and discrimination and retaliation claims
under Title VII of the Civil Rights Act of 1964 (“Title VII”),
42 U.S.C. § 2000e et seq.
The

School

Powell’s claims.
1

District

seeks

summary

judgment

on

all

of

Powell does not contest summary judgment on

Powell did not invoke 42 U.S.C. § 1983 in his Complaint even though
the Eleventh Circuit has stated that school district employees must
bring any § 1981 claims against their school district employers
through § 1983. Baker v. Birmingham Bd. of Educ., 531 F.3d 1336, 1337
(11th Cir. 2008).
Powell asks the Court for leave to amend his
Complaint to clarify that his § 1981 claims are asserted through
§ 1983.
That leave is granted, and Powell shall file his amended
Complaint within seven days of the date of this Order.

his § 1981 discrimination claims or his Title VII claims, so the
School District’s summary judgment motion on those claims is
granted.

As discussed below, the School District’s motion is

also granted as to all of Powell’s remaining claims except his
Whistleblower Act claim based on the December 2016 Reese Road
Elementary and Davis Elementary principal

promotion decisions

and his § 1981 retaliation claims based on the June 2017 Allen
Elementary and Rothschild Middle principal promotion decisions.
SUMMARY JUDGMENT STANDARD
Summary judgment may be granted only “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).

In determining whether a

Fed. R.

genuine dispute of

material fact exists to defeat a motion for summary judgment,
the evidence is viewed in the light most favorable to the party
opposing summary judgment, drawing all justifiable inferences in
the opposing party’s favor.
477 U.S. 242, 255 (1986).

Anderson v. Liberty Lobby, Inc.,
A fact is material if it is relevant

or necessary to the outcome of the suit.

Id. at 248.

A factual

dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.

Id.

FACTUAL BACKGROUND
Viewed in the light most favorable to Powell, the parties’
citations to the record reveal the following facts.

2

Powell began working for the School District as a school
counselor in August 2000.
complaint

of

race

In 2008, Powell, who is black, made a

discrimination

against

Powell Dep. 341:10-342:3, ECF No. 29.

a

white

coworker.

The School District’s

human resources personnel asked Powell to remove the complaint,
but he refused to do so.

Id. at 281:4-7.

Powell was promoted to assistant principal at a high school
in 2011, and he served as an assistant principal in various
schools

after

applied

for

that.

thirteen

Between
open

selected for any of them.
Powell

did

not

argue

May

2015

principal

and

May

positions.

2016,
He

Powell

was

not

In his response brief and sur-reply,

that

these

decisions

were

retaliatory.

Rather, he clarified that his failure-to-promote Whistleblower
Act claims are based on the December 2016 principal promotion
decisions for Reese Road Elementary and Davis Elementary and
that his failure-to-promote § 1981 retaliation claims are based
on the June 2017 principal promotion decisions for Rothschild
Middle and Allen Elementary.

If Powell previously made claims

based on other promotion decisions, he has abandoned them.

See

Resolution Tr. Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th
Cir. 1995) (en banc) (explaining that “grounds alleged in the
complaint but not relied upon in summary judgment are deemed
abandoned”).

3

During the 2016-2017 school year, Powell was an assistant
principal at AIM/Edgewood Student Services Center (“AIM”).
AIM

special

contract

education

behavioral

student

was

specialist

seriously

repeatedly

injured

restrained

An

after
him.

a
A

teacher named Zehra Malone was present for the final “takedown”
that injured the student, and she was aware that the student had
been injured.
the

Though Powell checked on the student twice during

restraints,

injured,

and

he

Malone

did

not

did

know

not

tell

that
him.

the

student

The

next

had
day,

been
the

student’s mother told Powell that the student had been seriously
injured.

Powell wrote a written reprimand to Malone for failing

to tell him about the student’s injuries, and he copied AIM’s
principal on the letter.
In

December

2016,

School

District

Chief

Human

Resources

Officer Kathy Tessin told Powell that he could not issue the
reprimand because only the School District’s superintendent has
authority to issue an official reprimand.
rescind the letter.

Powell refused.

She pressed Powell to

Also in December 2016, the

School District filled principal positions at Davis Elementary
and Reese Road Elementary.

Powell applied for both positions

but was not selected for either one.
Superintendent David Lewis decided to demote Powell to a
school counselor position for the 2017-2018 school year, and

4

Tessin informed Powell of the decision on May 3, 2017.2

During

that meeting, Powell asked Tessin why he was not being promoted
to a principal position; since May 2015, Powell applied for at
least fifteen principal positions but was never selected for
one.

Powell asserts that Tessin “clearly stated that because

[Powell]

refused

complaint

on

[a

to

remove

former

wasn’t being promoted.”

[a

2008

colleague,

race]

that]

is

discrimination

the

reason

[he]

Powell Dep. 281:4-7; accord id.

at

341:10-342:3.3
After Powell submitted a grievance regarding his demotion,
Lewis rescinded the demotion and informed Powell in mid-May that
he would be given an assistant principal position for the next
school

year.

In

June

2017,

Powell

applied

for

principal

positions at Allen Elementary and Rothschild Middle but was not
selected.

Instead,

Powell

was

assigned

to

two

elementary

schools as an assistant principal for the 2017-2018 school year.
Powell asserts that his job duties were reduced, pointing to
evidence that the principal of one school asked him to help with
some clean-up and inventory tasks at the beginning of the 20172018 school year.

See Pl.’s Resp. to Def.’s Mot. for Summ. J.

Ex. 17, Email from Y. Scarborough to E. Powell (Aug. 8, 2017 at
2

Based on his response brief and sur-reply, Powell does not appear to
assert retaliation claims based on the May 2017 demotion. Even if he
had, he did not point to evidence that the decision was causally
related to activity protected under § 1981 or the Whistleblower Act.
3 Tessin denies making this statement, but at summary judgment the
record must be viewed in the light most favorable to Powell.

5

6:56 AM), ECF No. 26-11 at 4 (asking for help coordinating the
removal of broken furniture); Id., Email from Y. Scarborough to
E. Powell (Aug. 18, 2017 at 8:35 AM), ECF No. 26-11 at 3 (asking
for help organizing books).
DISCUSSION
I.

Powell’s § 1981 Retaliation Claim
Section 1981 prohibits employers from retaliating against

their employees for complaining of racial discrimination.
W., Inc. v. Humphries, 553 U.S. 442, 457 (2008).

CBOCS

To establish a

§ 1981 retaliation claim, a plaintiff must prove that he engaged
in activity protected under § 1981, that he suffered an adverse
action, and “that the adverse action was causally related to the
protected activity.”

Jefferson v. Sewon Am., Inc., 891 F.3d

911, 924 (11th Cir. 2018).
Powell’s § 1981 retaliation claims are based on (1) the
June

2017

Allen

Elementary

and

Rothschild

Middle

principal

promotion decisions and (2) the alleged reduction of his job
duties.

Regarding the reduction of job duties, although Powell

pointed to evidence that the principal of one of his assigned
schools

asked

him

to

coordinate

a

handful

of

clean-up

and

inventory tasks during a two-week period at the beginning of the
2017-2018 school year, Powell did not point to any evidence that
these types of assignments continued or that the principal who
made the assignments was aware of his past protected activity.

6

Thus, Powell’s evidence does not support a § 1981 retaliation
claim based on the alleged reduction of his job duties.
Turning to the June 2017 principal promotion decisions for
Allen Elementary and Rothschild Middle, a genuine fact dispute
exists on these § 1981 retaliation claims because Powell pointed
to direct evidence of retaliation: Tessin told Powell that he
would not be promoted to principal if he refused to rescind his
2008 racial discrimination complaint about a co-worker.

The

School District denies that Tessin made the statement, but the
Court must credit Powell’s sworn deposition testimony at this
stage of the proceedings.

If believed, Tessin’s statement would

establish that the School District refused to promote Powell to
principal because of his past complaint of racial discrimination
and

his

refusal

to

rescind

the

complaint.

And,

soon

after

Tessin made the statement, Powell applied for but was denied the
Allen

Elementary

and

Rothschild

Middle

principal

positions.

Summary judgment is not appropriate if the plaintiff “presents
direct

evidence

that,

if

believed

by

the

jury,

would

be

sufficient to win at trial . . ., even where the movant presents
conflicting

evidence.”

Jefferson,

891

F.3d

at

922-23

(alteration in original) (quoting Merritt v. Dillard Paper Co.,
120 F.3d 1181, 1189 (11th Cir. 1997)) (reversing district court
that

applied

plaintiff

had

McDonnell
pointed

to

Douglas
direct

7

framework
evidence

even
of

though

the

discrimination).

Therefore,

the

Court

denies

the

School

District’s

summary

judgment motion on the failure-to-promote claims based on the
2017 Allen Elementary and Rothschild Middle promotion decisions.
II.

Powell’s Whistleblower Act Claim
The Georgia Whistleblower Act prohibits a state employer

from retaliating against an employee for disclosing violations
of laws, rules, or regulations to a supervisor or a government
agency. O.C.G.A. § 45-1-4(d)(2).
whistleblower
Georgia

claim

courts

use

is

subject

“the

In “evaluating whether a state
to

summary

McDonnell

adjudication,”

Douglas

the

burden-shifting

analysis used in Title VII retaliation cases.” Coward v. MCG
Health, Inc., 802 S.E.2d 396, 399 (Ga. Ct. App. 2017).

Under

that framework, if there is no direct evidence of retaliation
based on conduct protected under the Whistleblower Act, then “a
plaintiff must prove that he engaged in statutorily protected
activity, he suffered a materially adverse action, and there was
some causal relation between the two events.”

Goldsmith v.

Bagby Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008).

If

the plaintiff establishes these elements, then the employer may
articulate a legitimate, nonretaliatory reason for its decision,
and

to

survive

summary

judgment

the

plaintiff

evidence that the proffered reason is pretextual.

must

present

Id.

Here, there is no dispute that Powell’s reprimand letter to
Malone is protected activity or that a denied promotion is a

8

materially adverse action.

And, a jury could infer a causal

connection based on the very close temporal proximity between
Powell’s letter of concern (and Tessin’s request that he rescind
it)

and

the

December

2016

principal

promotion

Davis Elementary and Reese Road Elementary.

decisions

for

Accordingly, Powell

established a prima facie case of retaliation.
The

School

District

asserts

that

it

had

a

legitimate

nonretaliatory reason for its decision: Powell was not qualified
to

be

a

principal

because

he

classroom teaching experience.4

did

not

have

three

years

of

But Powell pointed to evidence

that the job postings for the principal positions do not list
three years of classroom teaching experience as a requirement.
See, e.g., Pl.’s Resp. to Def.’s Mot. for Summ. J. Ex. 11,
Principal, Davis Elementary School Job Posting, ECF No. 26-5.
Rather, they require three years of experience as a principal or
4

The School District presented evidence that in 2014, it decided that
“all subsequent hires for any school-based administrator position must
have at least three years of classroom teaching experience.”
Tessin
Aff. ¶ 7, ECF No. 20-5. Powell moved to strike the affidavit, arguing
that the School District did not disclose this policy during discovery
and that the affidavit conflicts with Tessin’s deposition testimony.
The School District disclosed the policy during discovery. See Def.’s
Resp. & Obj. to Pl.’s 2d Interrogs. 4, ECF No. 27-2. Though the form
of the responses is flawed because the responses are signed by an
attorney and not the person who made the answers, the problem with the
form does not mean that the policy was not disclosed during discovery.
And, Tessin’s deposition testimony does not conflict with the
affidavit. Rather, it reveals that Powell’s attorney asked Tessin how
she responded when Powell asked her why he was not selected for
several principal positions.
Tessin said she told Powell that his
skill set did not meet the School District’s needs and that the
superintendent
expected
classroom
teaching
experience.
Powell’s
attorney did not follow up on these responses. The motion to strike
(ECF No. 24) is denied, and further discovery is not warranted.

9

assistant principal, which Powell had.

Thus, the Court finds

that genuine fact disputes preclude summary judgment on Powell’s
Whistleblower Act claims based on the December 2016 promotion
decisions (Davis Elementary and Reese Road Elementary).5
CONCLUSION
As discussed above, the School District’s summary judgment
motion

(ECF

No.

20)

discrimination claims

is

granted

as

to

Powell’s

and his Title VII claims.

§ 1981

The School

District’s summary judgment motion is also granted as to all of
Powell’s other claims except Powell’s § 1981 retaliation claims
based on two June 2017 promotion decisions (Rothschild Middle
and Allen Elementary) and his Whistleblower Act claims based on
two

December

2016

promotion

Reese Road Elementary).

decisions

(Davis

Elementary

and

Powell’s motion to strike (ECF No. 24)

and the School District’s motion to stay proceedings (ECF No.
36) are denied.

Within seven days of the date of this Order,

Powell may file an Amended Complaint to clarify that his § 1981
claims are brought through § 1983.
IT IS SO ORDERED, this 9th day of January, 2019.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
5

The School District did not clearly argue in its summary judgment
brief that the selected candidates were better qualified than Powell,
so the Court may not consider that potential reason as a legitimate
nonretaliatory reason for the December 2016 promotion decisions.

10