Ezekiel v. Tift County School District et al

Filing 46

ORDER granting 24 Motion for Summary Judgment. Ordered by Judge Hugh Lawson on 8/27/2010. (nbp)

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Ezekiel v. Tift County School District et al Doc. 46 IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF GEORGIA V A L D O S T A DIVISION K IM EZEKIEL, : : P la in t if f , : : v. : : T IF T COUNTY SCHOOL DISTRICT, : e t al., : : : D e fe n d a n t. _______________________________ : ORDER B e fo re the Court is the Defendants' motion for summary judgment (Doc. 24). For the following reasons, the motion is granted. I. N O T IC E OF OBJECTIONS TO AFFIDAVIT B e fo re reaching the merits of the Defendants' summary judgment motion, the C o u rt addresses Plaintiff Kim Ezekiel's ("Ezekiel") objection (Doc. 43) to an affidavit file d as an exhibit to the Defendants' reply brief. The affidavit is written by an a tto rn e y for the Defendants, John Reinhardt ("Reinhardt"). Ezekiel claims C iv il Action No. 7 :0 8 -C V -1 2 7 (HL) R e in h a r d t's affidavit improperly renders Reinhardt both an attorney and a witness in the case. She also asserts that the affidavit impermissibly advances new material in to the case. Defendants claim that the affidavit is relevant because it responds to s ta te m e n ts made by Ezekiel in her response brief. in te n d to call Reinhardt as a witness. T h e affidavit was filed in response to Ezekiel's challenge that Defendant Tift They state that they do not Dockets.Justia.com County School District ("the School District") lacked a hiring and promotion policy or fa ile d to follow the policies if any were in place. The affidavit from Reinhardt e x p la in s that he provided to Ezekiel's attorney copies of the School District's hiring a n d promotion policies that were in place during the time Ezekiel claimed she s u ffe re d from discrimination. Because the affidavit was filed in response to E z e k ie l's challenge to the existence of any policies, the Court concludes that the a ffid a v it is relevant and does not unfairly inject new material into the case. Rule 56(e) requires that "affidavits" that support or oppose summary judgment m o tio n s "be made on personal knowledge" and "set out facts that would be a d m is s ib le in evidence." Fed. R. Civ. P. 56(e). The affidavit from Attorney Reinhardt w a s based on Attorney Reinhardt's personal knowledge. Ezekiel does not contest w h e th e r Attorney Reinhardt has personal knowledge of the discovery materials he p ro d u c e d to Ezekiel's attorney. Moreover, an affidavit is not improper on the basis that it was signed by an a tto rn e y of record. Reed v. Aetna Cas. and Sur. Co., Inc., 160 F.R.D. 572, 576 ( N .D . Ind. 1995) (citing Friedel v. City of Madison, 832 F.2d 965, 970 (7th Cir. 1 9 8 7 )). Testimony that the School District had policies in place would be admissible e v id e n c e as would testimony that Ezekiel's attorney received copies of the policies. Thus, the Court will consider the affidavit in deciding the motion for summary ju d g m e n t because it complies with Rule 56 and contains relevant material. All facts w ill be viewed in the light most favorable to Ezekiel, the nonmoving party. 2 II. F A C T U A L AND PROCEDURAL BACKGROUND T h is is a case that arises out of the School District's and Defendant S u p e rin te n d e n t Patrick Atwater's ("Atwater") decisions to not promote Ezekiel, an A fric a n American female, to the position of Director of Human Resources for the S c h o o l District. Ezekiel has worked in the School District since 1982. (SOMF 6).1 F ro m 1982 to 1993 she was a classroom teacher. (Id.). In 1993 Ezekiel was p ro m o te d to the position of Title I Parent Involvement Coordinator. (SOMF 7). Her c u rre n t position is principal of Len Lastinger Primary School, which she has held s in c e 1999. (Id.). She has never received a negative evaluation or a complaint a b o u t her job performance. (Ezekiel Aff. 4). E z e k ie l holds a doctor in education degree, a masters degree in education a d m in istra tio n and supervision, and a bachelors degree in early childhood education. (Ezekiel Aff. 2). In January 2007 the School District advertised a vacant position titled Director o f Human Resources. (Atwater Dep. Ex. 10). The advertisement stated that the c a n d id a te "must hold, or be eligible for, a valid professional certificate in the field of L e a d e rs h ip . . . School level administrative experience required. Experience as a s c h o o l level principal strongly preferred." (Id.). Ezekiel applied for the position. (Ezekiel Aff. 7). Atwater asked Kevin Dobard ("Dobard"), the assistant principal "SOMF" refers to the Defendants' statement of material facts. The cited paragraphs are those admitted by Ezekiel in her response to the statement of facts. 3 1 of Tift County High School, to apply for the position. (Atwater Dep. at 86). Dobard is an African American male. Scott Chestnutwood ("Chestnutwood") was responsible for the duties of the H u m a n Resources Director and was asked to screen the applications for his re p la c e m e n t. He remembers that he received approximately twelve applications for th e position. He selected approximately seven applicants to interview. (Chestnutwood Dep. at 28-29). Ezekiel was one of the applicants selected as was D o b a rd . (Id. at 29; Ezekiel Aff. 7). Atwater interviewed the selected applicants. (Id. at 29; Atwater Dep. at 74). Chestnutwood did not interview the applicants. (Id.). E z e k ie l averred that she thought her interview was "a sham" because she was in te rv ie w e d by Atwater alone and not by a panel of interviewers, which was contrary to the School District's practice. (Ezekiel Aff. 8). The School District's personnel h irin g policy GBD-R states that "it shall be the responsibility of the recommending a d m in is tra to r to interview those candidates who apply . . . ." (Pl. Res. Br. Ex. 10, D o c . 31-11). After conducting interviews Atwater recommended to the School District's B o a rd of Education that Dobard be hired as the Director of Human Resources. (Atwater Dep. at 5-6). The Board of Education accepted Atwater's re c o m m e n d a tio n . (Id. at 25; Ex. 3, p. 4). Dobard has a bachelors degree in education and a masters degree in e d u c a tio n leadership. (SOMF 15; Dobard Dep. at 86, 87-88). He taught in the 4 New Orleans public school district for twelve years and served as a dean of students a t a New Orleans school, a position that has similar duties to an assistant principal p o s itio n . (Dobard Dep. at 86, 87). After he received his masters degree he served a s an assistant principal at a senior high school in New Orleans. (Id. at 88). Dobard moved to South Georgia in 2005 after Hurricane Katrina struck New Orleans. He w a s hired by the School District to serve as the assistant principal of Tift County H ig h School. (SOMF 18). Atwater testified that Dobard was qualified for the Director of Human R e s o u rc e s position. (Atwater Dep. at 38). He met the requirements of the position s in c e he had a masters degree in education leadership, which constituted a p ro fe s s io n a l certificate in the field of leadership and he had school administrative e x p e rie n c e . (Id.). Atwater chose Dobard for the position because Atwater received m o re unsolicited accolades about Dobard than any of the other principals in the S c h o o l District combined. (Atwater Dep. Ex. 3, p. 109). He believed Dobard had m a d e a positive impact upon the community. He thought Dobard was a very p o s itiv e , upbeat, kind, and fair person. (Id.). Atwater additionally believed Dobard was more qualified for the Director of H u m a n Services position than Ezekiel even though Ezekiel served as a principal and D o b a rd did not and Ezekiel had a higher leadership level ranking than Dobard. (Atwater Dep. at 42). Atwater also believed that Ezekiel expressed less interest in th e Director of Human Resources position than Dobard. He came to believe this 5 based on the flow of the conversation and Ezekiel's body language during the in te rv ie w . (Atwar Dep. at 58). Ezekiel believes that Atwater discouraged her from continuing with the in te rv ie w because he asked her whether she would be interested in the Director of H u m a n Resources position if she received a monetary incentive to remain a p rin c ip a l. (Ezekiel Aff. 7). Atwater testified that he asked Ezekiel that question b e c a u s e he wanted to know whether she was interested in the Director of Human R e s o u rc e s position solely because the position paid more. (Atwater Dep. at 59-60). Ezekiel also was troubled by Atwater's interview question of whether she c o u ld get along with secretaries who "get in their moods." (Ezekiel Dep. at 60-61). Ezekiel took the question to mean that Atwater questioned whether she could get a lo n g with other people. (Id.). After the Board of Education approved Dobard for the position, Atwater told E z e k ie l that she was not selected for the Director of Human Resources position. Ezekiel later sent Atwater an e-mail asking why she was not hired. (Ezekiel Aff. 1 1 ). Atwater responded that he would come and talk to her, but he never did. (Id.). Tammie Smith ("Smith"), a female, applied for the Director of Human R e s o u rc e s position. Atwater told her that "there's things I can say to a man that I c a n 't say to a woman." (Smith Dep. at 11). Atwater testified that the Smith was u p s e t and crying about not receiving the Director of Human Resources position w h e n he made the statement. He explained that "[he] feel[s] more comfortable 6 sitting across from a man than a woman"because "it is easier dealing with people w h e n they don't cry" and that "men typically don't seem to cry as much as females e m o tio n a lly ." (Atwater Dep. at 97-98). E z e k ie l filed a grievance with the School District's Board of Education claiming s h e was discriminated against on the basis of her sex and age when she was not p ro m o te d to the Director of Human Resources position. (SOMF 20). Ezekiel later a b a n d o n e d her age discrimination claim when she discovered that Dobard was older th a n she was. (SOMF 23). The School Board held a hearing on Ezekiel's g rie v a n c e . (Atwater Dep. Ex. 3). Following the hearing, it issued a written decision fin d in g that Ezekiel was not discriminated against on the basis of her sex when she w a s not promoted to the Director of Human Resources position. (SOMF 24). Six o f the seven members of the Board of Education found that Ezekiel did not suffer fro m discrimination; the member who decided that Ezekiel did suffer from d is c rim in a tio n was Ezekiel's aunt. (SOMF 26). Ezekiel filed a charge of discrimination with the Equal Employment O p p o rtu n ity Commission ("EEOC") on May 22, 2007. (Compl. Ex. A). One week later s h e filed an amended charge of discrimination with the EEOC. (Compl. Ex. B). On J u ly 29, 2008, the EEOC issued Ezekiel a right to sue notice. (Compl. Ex. C). F ro m the time she complained of discrimination in April-May 2007 Ezekiel c la im s she has been treated differently by her supervisors and the individuals with w h o m she works in the School District's central office. (Ezekiel Aff. 10). She 7 testified that after she filed her EEOC charge Atwater avoided her by not returning e -m a ils or phone calls. (Ezekiel Dep. at 136). However, by September 2007 his b e h a v io r toward her improved. (Id. at 138). Betty Newkirk ("Newkirk"), the assistant s u p e rin te n d e n t for instruction, made sarcastic remarks to her in principals' meetings. (Id. at 140). Newkirk also denied the Ezekiel the opportunity to implement programs s u c h as a faculty book club, Saturday school, and use of Title I funds. (Id. at 1424 6 ). Ezekiel thought Newkirk turned against her because Newkirk was Atwater's p e rs o n a l friend. (Id. at 149). Since filing her grievance Ezekiel has not received any reduction in pay, e x c e p t a reduction caused by the state's furlough program, or a change in the n u m b e r of hours she must work. (Id. at 150). None of her duties and responsibilities a s principal have changed, nor has she received a reduction in the benefits she re c e iv e s . (Id. at 150). On October 2, 2008, Ezekiel filed a complaint in this Court against the School D is tric t and Atwater, in his official and individual capacities. She alleges she was d is c rim in a te d against on the basis of her race and sex as well as subject to a hostile w o rk environment and retaliation. She claims violations of the Equal Protection C la u s e , Title VII of the Civil Rights Act of 1964,2 the Equal Pay Act of 1963,3 42 U .S .C . 1981, and state tort and contract law. Ezekiel asks for compensatory and 2 The statute is codified at 42 U.S.C. 2000e et seq. The statute is codified at 29 U.S.C. 206 et seq. 8 3 punitive damages, attorneys fees, and injunctive and equitable relief. The Court later granted the Defendants motion for judgment on the pleadings a n d dismissed Ezekiel's Equal Pay Act and Title VII claims based on disparate pay (D o c . 41). On December 2, 2009, the Defendants filed a motion for summary ju d g m e n t seeking judgment as a matter of law on all of Ezekiel's remaining federal c la im s . III. D IS C U S S IO N A. S u m m a ry Judgment Standard S u m m a ry judgment must be granted if "the pleadings, the discovery and d is c lo s u re materials on file, and any affidavits show that there is no genuine issue a s to any material facts and that the movant is entitled to judgment as a matter of la w . Fed. R. Civ. P. 56(c). In ruling on a defendant's motion for summary judgment, th e court takes the facts in the light most favorable to the plaintiff. Stanley v. City of D a lto n , 219 F.3d 1280, 1287 (11th Cir. 2000). The court may not, however, make c re d ib ility determinations or weigh the evidence. Anderson v. Liberty Lobby, Inc., 4 7 7 U.S. 242, 255, 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986). T h e initial burden lies on the movant to demonstrate that the nonmovant lacks e v id e n c e to support an essential element of its claim. Lowe v. Aldridge, 958 F.2d 1 5 6 5 , 1569 (11th Cir. 1992). The burden then shifts to the nonmovant, who must c o m e forward with some evidence that would allow a jury to find in his favor, even if the parties dispute that evidence. Id. If the evidence that the nonmovant presents, 9 however, is "not significantly probative" or "merely colorable," then summary ju d g m e n t may be granted. Liberty Lobby, 477 U.S. at 249. B. T itle VII, Equal Protection, and 1981 Claims Analyzed Under S a m e Framework Ezekiel has brought discrimination claims under the Equal Protection Clause (v ia 42 U.S.C. 1983), 1981 (via 1983), and Title VII. These statutory and c o n s titu tio n a l remedies are subject to the same standards of proof and use the same a n a ly tic a l framework. Bryant v. Jones, 575 F.3d 1281, 1296 n. 20 (11th Cir. 2009). The Court will accordingly evaluate each discrimination claim using one fra m e w o rk , regardless of whether the claim is brought under Title VII, 1981, or the E q u a l Protection Clause. C. F a ilu r e to Promote Race and Sex Discrimination Claims E z e k ie l claims she was subjected to discrimination on the basis of her race a n d sex when she was not promoted to the position of Director of Human R e s o u rc e s . Race or sex discrimination claims analyses proceed in one of two ways. First, a plaintiff may present direct evidence of discrimination. Second, a plaintiff may p re s e n t circumstantial evidence of discrimination and shift the burden of producing c o n tra ry evidence to the defendant pursuant to the burden-shifting framework in M c D o n n e ll Douglas Corp. v. Green, 411 U.S. 792, 802-804, 93 S. Ct. 1817, 18242 5 , 36 L.Ed.2d 668 (1973). Morris v. Emory Clinic, Inc., 402 F.3d 1076, 1081 (11th 10 Cir. 2005). Ezekiel argues there is direct evidence of discrimination present in the record a n d alternatively, that there is sufficient circumstantial evidence of discrimination. Each argument is addressed in turn. 1. D ir e c t Evidence of Discrimination D ire c t evidence is "evidence, that, if believed, proves [the] existence of [a] fact w ith o u t inference or presumption." Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1 0 8 6 (11th Cir.2004) (citation omitted). "Evidence that only suggests discrimination o r that is subject to more than one interpretation does not constitute direct evidence." T a y lo r v. Runyon, 175 F.3d 861, 867 (11th Cir.1999) (citation omitted). Direct e v id e n c e does not include "stray remarks in the workplace, statements by n o n d e c is io n m a k e rs , and statements by decisionmakers unrelated to the decisional p r o c e s s itself." E.E.O.C. v. Alton Packaging Corp., 901 F.2d 920, 924 (11th Cir. 1 9 9 0 ) (citation omitted). Ezekiel points to the following statements made by Atwater as direct evidence o f sex discrimination: (1) Atwater told Smith that he can say some things to a man th a t he cannot say to a woman; (2) Atwater stated that he was more comfortable s ittin g across the table from a man than a woman when the woman is crying; (3) A tw a te r said that men do not seem to cry as much as females; and (4) Atwater a s k e d Ezekiel whether she could handle the moods of the secretaries. Assuming th a t Atwater made the statements, the statements do not rise to the level of direct 11 discrimination. T h e re is no evidence that Atwater's statements that he is more comfortable w ith a man than a crying woman, that women seem to cry more than men, and that h e cannot say certain things to a woman were linked to the process of hiring the D ire c to r of Human Resources; therefore, they are not direct evidence of d is c rim in a tio n . Even if they were statements related to the decisional process, they d o not prove, without inference, that Atwater decided not to recommend Ezekiel for th e Director of Human Resources position because of her sex. The remaining c o m m e n t about the secretaries' moods is related to whether Atwater thought Ezekiel c o u ld perform the Director of Human Resources position, but it merely suggests that A tw a te r may have declined to hire Ezekiel for the Director of Human Services p o s itio n because of his general bias against women. It does not prove, without in fe re n c e , that she was not promoted because of her sex. B e c a u s e Ezekiel has not proven her claims by way of direct evidence of d is c rim in a tio n , the Court will next consider whether there is circumstantial evidence o f race and sex discrimination. 2. C ir c u m s ta n tia l Evidence of Discrimination T h e McDonnell Douglas framework provides that a plaintiff may prove his d is c rim in a tio n case through circumstantial evidence. Under this framework the p la in tiff first presents a prima facie case of discrimination. Burke-Fowler v. Orange C n ty ., Fla., 447 F.3d 1319, 1323 (11th Cir.2006). If the plaintiff presents a prima 12 facie case then the burden of production shifts to the defendant to articulate a le g itim a te , nondiscriminatory reason for its actions. Wilson, 376 F.3d at 1087. If the d e fe n d a n t produces a legitimate, nondiscriminatory reason for its actions, then the b u rd e n of production shifts back to the plaintiff to offer evidence that the defendant's a rtic u la te d reason is a pretext for discrimination. Id. To meet her burden of establishing a prima facie case of discriminatory failure to promote, a plaintiff must prove "(1) that [s]he is a member of a protected class; (2) th a t [s]he was qualified for and applied for the promotion; (3) that [s]he was rejected; a n d (4) that other equally or less qualified employees who were not members of the p ro te c te d class were promoted." Combs v. Plantation Patterns, 106 F.3d 1519, 1 5 3 8 -3 9 n. 11 (11th Cir.1997). Ezekiel alleges she was not promoted because of her race and sex. With re g a rd to her sex claim, she has presented a prima facie case of sex discrimination: s h e is a female; she was qualified and applied for the Director of Human Resources p o s itio n ; she was not selected for the position; and Dobard, a male, was promoted to the position. W ith regard to her race claim, however, she has not presented a prima facie c a s e . Although Ezekiel is an African American and a member of a protected class, s o is Dobard. Thus, she has not presented evidence on the fourth prong of a prima fa c ie case. Ezekiel nevertheless argues that she can present a prima facie case e v e n though Dobard is an African American male. 13 She points to Howard v. Roadway Exp., Inc., 726 F.2d 1259, 1535 (11th Cir. 1984), a case where race d is c rim in a tio n was found even though the plaintiff was replaced by a member of her p ro te c te d class. Howard is distinguishable. In that case, the plaintiff was replaced b y a member of her protected class after she filed a charge of discrimination. The re p la c e m e n t suggested a cover-up. In contrast, Dobard was hired before Ezekiel c o m p la in e d of discrimination. Even if the Court were to assume that Ezekiel has presented a prima facie c a s e of both race and sex discrimination, her claims must fail because the D e fe n d a n ts have presented a legitimate, nondiscriminatory explanation of their d e c is io n to hire Dobard, and Ezekiel has not presented evidence that the n o n d is c rim in a to ry reason was a pretext for discrimination. T h e Defendants assert that they did not hire Ezekiel because Dobard was the s tro n g e s t candidate. Dobard received more accolades than other principals in the d is tric t, he had made a positive name for himself within the School District after w o rk in g in the School District for one year and he was considered upbeat and fair. These reasons constitute legitimate, nondiscriminatory reasons for the decision to h ir e Dobard. "[A] subjective reason is a legally sufficient, legitimate, n o n d is c rim in a to ry reason if the defendant articulates a clear and reasonably specific fa c tu a l basis upon which it based its subjective opinion." Springer v. Convergys C u s to m e r Mgmt. Group Inc., 509 F.3d 1344, 1349 (11th Cir. 2007) o m itte d ) . 14 (citation Since the Defendants have satisfied their burden of producing a n o n d is c rim in a to ry reason, Ezekiel must show that the reason was a pretext for race o r sex discrimination. To show pretext, the plaintiff must present evidence that s h o w s "such weaknesses, implausibilities, inconsistencies, incoherencies or c o n tr a d ic tio n s " in the defendant's explanations such "that a reasonable factfinder c o u ld find them unworthy of credence." Jackson v. Ala. State Tenure Comm'n, 405 F .3 d 1276, 1289 (11th Cir.2005) (citation omitted). A plaintiff may also present e v id e n c e of pretext by showing that "intentional discrimination motivated the e m p lo y e r." Wilson, 376 F.3d at 1088. Ezekiel argues that race and sex were the real reasons behind the decision to hire Dobard. She argues that the School District had a lack of objective hiring s ta n d a rd s and promotion policies or that it did not follow its policies. The Defendants a rg u e that the School District had objective hiring and promotion policies that were f o l lo w e d . Policy CGC states that the School District is to actively recruit the best p e rs o n s available for administrative positions in the school system. (Reinhardt Aff. E x . C). Policy GBD states that the Board of Education seeks to employ those with th e highest qualifications possible. (Pl. Res. Br. Ex. 10; Doc. 31-11). Ezekiel does n o t dispute that Dobard was qualified for the Director of Human Resources position. She does not argue that a doctorate degree or principalship experience was re q u ir e d ; instead, she argues that the School District's policies were violated 15 because she was the best person available for the position since she held a d o c to ra te degree and worked as principal. The Defendants have presented evidence that Dobard had qualities that made h im a better candidate than Ezekiel, namely his success at making a positive name fo r himself in the year as a newcomer to the School District and his receipt of a c c o la d e s . "Absent evidence that subjective hiring criteria were used as a mask for d is c rim in a tio n , the fact that an employer based a hiring or promotion decision on p u re ly subjective criteria will rarely, if ever, prove pretext ...." Springer, 509 F.3d at 1 3 4 9 (citation omitted). Subjective criteria include "[t]raits such as common sense, g o o d judgment, originality, ambition, loyalty, and tact often must be assessed p rim a rily in a subjective fashion, yet they are essential to an individual's success in a supervisory or professional position." Id. (citations omitted.). Ezekiel has presented no evidence that the Defendants' reliance on the s u b je c tiv e criteria and superior personal qualifications of Dobard was a mask for ra c ia l or sex discrimination. Additionally, "[a] plaintiff cannot prove pretext by simply arguing or even by s h o w in g that he was better qualified than the [person] who received the position he c o v e te d ." Id. (citations omitted). To show pretext based on qualifications, "a plaintiff m u s t show that the disparities between the successful applicant's and his own q u a lific a tio n s were of such weight and significance that no reasonable person, in the e x e rc is e of impartial judgment, could have chosen the candidate selected over the 16 plaintiff." Id. (citation and quotation omitted). Because Dobard was qualified for the p o s itio n and because Ezekiel's experience as a principal and her doctorate degree w a s not substantially higher than Dobard's experience and education, she was not a superior candidate such that no reasonable person could hire Dobard instead of E z e k ie l. In sum, the evidence in the record shows that the Defendants' decision to hire D o b a rd was a reasonable business decision. "[A] plaintiff employee may not e s ta b lis h that an employer's proffered reason is pretextual merely by questioning the w is d o m of the employer's reason as long as the reason is one that might motivate a reasonable employer." Id. at 1350 (citation omitted). Since she has failed to show th e Defendants' failure to promote her was pretextual and nothing more than a re a s o n a b le business decision her race and sex discrimination claims must fail. Summary judgment is granted to Defendants on her discrimination claims for failing to promote her on the basis of her race and sex. D. H o s tile Work Environment Claim U n d e r Title VII, a hostile work environment exists where "the workplace is p e rm e a te d with discriminatory intimidation, ridicule, and insult ... that is sufficiently s e v e re or pervasive to alter the conditions of the victim's employment and create an a b u s iv e working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 3 6 7 , 126 L.Ed.2d 295 (1993) (citation omitted). There is five part test a plaintiff must s a tis fy to establish a hostile work environment claim: (1) she belongs to a protected 17 group; (2) she has been subjected to unwelcome harassment; (3) the harassment w a s based on a protected characteristic of the plaintiff; (4) the harassment was s u ffic ie n tly severe or pervasive to alter the terms and conditions of employment and c re a te a discriminatory, abusive working environment; and (5) the employer was re s p o n s ib le for such environment under either a theory of vicarious or direct liability. M ille r v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir.2002). T h e Defendants dispute whether Ezekiel was subjected to unwelcome h a ra s s m e n t. Alternatively, they contend that even if there was harassment, it was n o t sufficiently severe or pervasive. Ezekiel asserts that the "record is covered with e x a m p le s of how [Ezekiel] was subjected to a hostile work environment." Troubling to the Court is that she points to no evidence in the record to support her assertion. An unsupported assertion does not create a genuine issue of fact necessary to s u rv iv e summary judgment. Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th C ir. 1985) ("This court has consistently held that conclusory allegations without s p e c ific supporting facts have no probative value.") (citation omitted). Ezekiel's fa ilu re to point to any evidence warrants granting summary judgment on her hostile w o r k environment claim. Nevertheless, the Court has reviewed the record to d e te rm in e whether there are facts creating genuine issues for trial. T h e evidence that could possibly be construed as harassment based on 18 Ezekiel's sex are Atwater's statements about women.4 The evidence that could be c o n s tru e d as harassment based on Ezekiel's filing of grievances is: (1) Atwater's fa ilu re to contact Ezekiel after she filed a grievance; (2) Newkirk's sarcastic remarks; and (3) Newkirk's failure to approve Ezekiel's proposed programs. A s for her hostile work environment claim based on sexual harassment, A tw a te r's statements about women must constitute sufficiently severe or pervasive h a ra s s m e n t. To meet this standard the behavior must result in both an environment "th a t a reasonable person would find hostile or abusive" and an environment that the v ic tim "subjectively perceive[s] ... to be abusive." Miller v. Kenworth of Dothan, Inc., 2 7 7 F.3d 1269, 1276 (11th Cir. 2002) (citation omitted). To determine the objective c o m p o n e n t the Court considers, with other factors: "(1) the frequency of the conduct; (2 ) the severity of the conduct; (3) whether the conduct is physically threatening or h u m ilia tin g , or a mere offensive utterance; and (4) whether the conduct u n re a s o n a b ly interferes with the employee's job performance." Id. (citation omitted). Applying these factors, the Court finds that Atwater's conduct was not o b je c tiv e ly severe or pervasive enough to create a discriminatory and abusive w o rk in g environment. Atwater's statements about women occurred sporadically. Atwater said to Smith there are some things he cannot say to a woman th a t he can say to a man. He also said that "[he] feel[s] more comfortable sitting a c ro s s from a man than a woman"because "it is easier dealing with people when th e y don't cry" and that "men typically don't seem to cry as much as females e m o tio n a lly ." He asked Ezekiel in her interview whether she could handle the m o o d s of the secretaries. 19 4 They are too isolated to show that the conduct was severe enough to create a h o s tile work environment. See McCann v. Tillman, 526 F.3d 1370, 1379 (11th Cir. 2 0 0 8 ) (finding that sporadic discriminatory statements did not amount to severe or p e rv a s iv e harassment). The statements could reasonably be seen as offensive, but w e re not physically threatening or humiliating. Notably, some of the statements w e re not made to Ezekiel, but rather made to Smith. Ezekiel has not presented e v id e n c e of when she came to learn of Atwater's statements made to Smith. Ezekiel c a n n o t contend that the statements were harassing to her if she did not know the s ta te m e n ts were made during the time she alleges she experienced a hostile work e n v iro n m e n t. See Hudson v. Norfolk S. Ry. Co., 209 F.Supp.2d 1301, 1326 (N .D .G a .2 0 0 1 ) (explaining that a "[p]laintiff may support a claim of hostile work e n v iro n m e n t by the use of harassing conduct she learned of through hearsay, so lo n g as she was aware of the harassing incidents at the relevant time at which she a lle g e s she experienced the hostile environment."). On these facts, Ezekiel's hostile w o rk environment claim, to the extent it is based on sexual harassment, fails. T h e evidence supporting her hostile work environment claim based on her c o m p la in ts of discrimination also is insufficient to survive summary judgment. Ezekiel admitted that Atwater's avoiding behavior began in April-May 2007 and e n d e d by September 2007. His conduct was temporary, it was not physically th re a te n in g or humiliating. Ezekiel has not shown how his conduct interfered with h e r job performance. As for Newkirk's allegedly sarcastic remarks, the record does 20 not state what the statements were. The mere allegation that Newkirk made s a rc a s tic comments is insufficient to establish that the statements constituted h a ra s s m e n t. There is also insufficient evidence to conclude that Newkirk's failure to approve Ezekiel's proposed programs was based upon Ezekiel's grievance filings. Even if Newkirk denied Ezekiel's program proposals because Ezekiel filed g rie v a n c e s , there is insufficient evidence to find that Newkirk's conduct was s u ffic ie n tly severe or pervasive. In total, Newkirk denied Ezekiel the opportunity to im p le m e n t approximately three programs. The denials were not frequent enough to c re a te a pervasive environment of harassment. Newkirk's conduct also did not p h y s ic a lly threaten Ezekiel and there is no evidence that Ezekiel's job performance w a s negatively affected. Ezekiel has failed to create a genuine issue of fact on her claim that she was s u b je c t to a hostile work environment for filing grievances or because of her sex. Summary judgment must therefore be granted to the Defendants on Ezekiel's hostile w o rk environment claim. E. R e t a lia t io n E z e k ie l contends that the Defendants retaliated against her because she filed g rie v a n c e s to the School Board and the EEOC and because she filed a complaint o f discrimination in this Court. To establish a prima facie case of retaliation, "the p la in tiff must show (1) that she engaged in statutorily protected expression; (2) that s h e suffered an adverse employment action; and (3) that there is some causal 21 relation between the two events." Meeks v. Computer Assocs. Int'l, 15 F.3d 1013, 1 0 2 1 (11th Cir.1994) (citations omitted). If a prima facie case is established, then th e burden shifts to the employer to produce a legitimate nondiscriminatory reason fo r the adverse employment action. Brown v. City of Opelika, 211 Fed. App'x 862, 8 6 4 (11th Cir. 2006). Then the plaintiff must show that the proferred reason is a p re te x t for the employer's retaliatory action. Id. The Defendants contend that Ezekiel has not presented evidence that she s u ffe re d an adverse employment action. Ezekiel responds that she suffered adverse e m p lo y m e n t actions because she suffered from retaliatory harassment. Her re ta lia tio n claim is supported by the same evidence as her hostile work environment c la im : Atwater ignored her after she complained of discrimination; Ezekiel has not b e e n allowed to implement programs; and Newkirk made comments to her in the w o rk p la c e . She also mentions that she has not been awarded a twelve-month c o n tra c t and central office personnel seemed upset when Ezekiel asked for d o c u m e n ts to support her discrimination case. An employment action is adverse if the conduct has a materially adverse e ffe c t on the plaintiff, which "means it well might have dissuaded a reasonable w o rk e r from making or supporting a charge of discrimination." Crawford v. Carroll, 5 2 9 F.3d 961, 973-74 (11th Cir. 2008) (citation omitted). "[N]ormally petty slights, m in o r annoyances, and simple lack of good manners will not create such d e te rre n c e ." Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53,68, 126 S. 22 Ct. 2405, 165 L.Ed.2d 345 (2006); see also Colapietro v. Dep't of Motor Vehicles, 2 0 1 0 WL 2596519, at *9 (D. Conn. June 24, 2010) (explaining that a supervisor's s n u b b in g , use of offensive words, and shunning were annoyances rather than m a te ria lly adverse actions). The Eleventh Circuit has never explicitly held whether retaliatory harassment c o n s titu te s an adverse employment action, but other circuit courts have. Noviello v . City of Boston, 398 F.3d 76, 89 (1st Cir. 2005) ("The weight of authority supports th e view that, under Title VII, the creation and perpetuation of a hostile work e n v iro n m e n t can comprise a retaliatory adverse employment action.") (citing multiple c a s e s ). Courts that recognize the claim for retaliatory harassment require the h a ra s s m e n t be severe or pervasive. Byrant v. Brownlee, 265 F. Supp. 2d 52, 67 (D .D .C . 2003) (citing cases). F o llo w in g the directive of the courts that recognize retaliation harassment c la im s and for the same reasons that the Court found Ezekiel's hostile work e n v iro n m e n t claim failed, the Court must find that her retaliation claim fails. The c o n d u c t Ezekiel complains of does not rise to the level of pervasive or severe h a ra s s m e n t. Further, Atwater's conduct, the denial of Ezekiel's proposals, and the s ta te m e n ts made by Newkirk and office personnel do not rise to the level of having a materially adverse effect on Ezekiel. Atwater's conduct was temporary. At most h is avoidance of her constituted an annoyance. Newkirk's and office personnel 23 comments also are not materially adverse actions, but rather are annoyances. Ezekiel has not shown how her employment was affected by Newkirk's c o n d u c t denying her requests to implement programs. If anything, students may h a v e suffered from these denials, but Newkirk's conduct did not adversely effect E z e k ie l, and even if it did, it was not sufficiently adverse to deter a reasonable p e rs o n from complaining about discrimination. Even assuming arguendo that Ezekiel has satisfied a prima facie case as to N e w k irk 's decision to deny Ezekiel's request to implement programs, she has not s h o w n that Newkirk's decisions were motivated by a discriminatory reason. Since s h e has failed to show pretext, her retaliation claim based on Newkirk's decisions to d e n y program proposals fails. A s for Ezekiel's lack of a twelve-month contract, the Court will assume that the fa ilu re to award her a twelve-month contract was a materially adverse employment a c tio n . Ezekie, however, has presented no evidence that the failure to receive a tw e lv e -m o n th contract was causally related to her complaints of discrimination. Ezekiel actually testified that she should have been awarded a twelve-month c o n tra c t because she was one of the higher paid employees within the School D is tric t. (Ezekiel Dep. at 119). The Defendants responded that Ezekiel does not h a v e a twelve-month contract because her school size is smaller than other p rin c ip a ls who receive twelve-month contracts. There is nothing showing that E z e k ie l's lack of twelve-month contract was related to her complaints of 24 discrimination. Ezekiel has not satisfied her summary judgment burden on her retaliation c la im . Summary judgment must accordingly be granted to the Defendants. F. Q u a lifie d Immunity A tw a te r, a state actor, is entitled to qualified immunity on Ezekiel's equal p ro te c tio n and 1981 claims, brought under 1983. A state government official, like A tw a te r, is entitled to qualified immunity unless the plaintiff shows that the official c o m m itte d a constitutional violation. McCullough v. Antolini, 559 F.3d 1201, 1205 (1 1 th Cir. 2009). As already discussed, Ezekiel has not presented sufficient evidence to d e m o n s tra te a genuine issue of material fact as to whether Atwater discriminated a g a in s t her on the basis of her race or sex, and she has not shown that Atwater c re a te d a hostile work environment or retaliated against her. As a result, Ezekiel has n o t shown that his conduct violated any of Ezekiel's constitutional rights. He is a c c o rd in g ly entitled to qualified immunity. G. R e m a in in g State Law Claims T h e Defendants have not moved for summary judgment on Ezekiel's state law c la im s of tortious interference with her employment contract (Count V), breach of c o n tra c t (Count VI), intentional infliction of emotional distress (Count VII), and n e g lig e n t retention of Atwater after he committed discrimination (Count VIII). B e c a u s e the Court grants the Defendants' motion for summary judgment with 25 regard to Ezekiel's federal claims, the only basis for jurisdiction over the state law c la im s is supplemental jurisdiction. The Court has discretion to decline to exercise s u p p le m e n ta l jurisdiction over remaining state law claims. Baggett v. First Nat'l B a n k of Gainesville, 117 F.3d 1342, 1352 (11th Cir.1997). In this case, the Court sees no reason to decide the state law claims. Accordingly, the state law claims are dismissed. IV . C O N C L U S IO N T h e Defendants' motion for summary judgment (Doc. 24) is granted. As the re m a in in g state law claims are dismissed, the clerk's office is directed enter ju d g m e n t in favor of the Defendants and close the case. S O ORDERED, this the 27th day of August, 2010. s / Hugh Lawson HUGH LAWSON, SENIOR JUDGE lmc 26

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