POWELL v. Valdosta City School District et al

Filing 46

ORDER granting in part and denying in part 26 Motion to Exclude Testimony; granting in part and denying in part 27 Motion for Summary Judgment. Ordered by U.S. District Judge HUGH LAWSON on 11/6/2014. (nbp)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION

SHADAWN POWELL,
Plaintiff,
v.

Civil Action No. 7:13-CV-53 (HL)

VALDOSTA
CITY
SCHOOL
DISTRICT, SUPERINTENDENT DR.
WILLIAM O. CASON, Individually
and in his Official Capacity,
PRINCIPAL JOHN L. DAVIS, and MS.
KATIE L. CHAPPUS, Individually and
in her Official Capacity,
Defendants.

ORDER
Before the Court are Defendants’ Motion for Summary Judgment (Doc. 27)
and Daubert Motion to Exclude the Testimony of Angela Delvin-Brown (Doc. 26).
The Court held a hearing on these motions on September 17, 2014. For the
reasons stated below, the Daubert motion is granted in part and denied in part,
and the motion for summary judgment is granted in part and denied in part.
I.

Motion for Summary Judgment
A.

Summary Judgment Standard

Summary judgment is appropriate when “the pleadings, the discovery and
disclosure materials on file, and any affidavits show there is no genuine issue as
to any material fact and … the moving party is entitled to a judgment as a matter

of law.” Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact arises
only when “the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106
S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court must evaluate all of the evidence,
together with any logical inferences, in the light most favorable to the nonmoving
party. Id. at 254–55. The court may not, however, make credibility determinations
or weigh the evidence. Id. at 255; see also Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
The

party

seeking

summary

judgment

“always

bears

the

initial

responsibility of informing the district court of the basis for its motion, and
identifying

those

portions

of

the

pleadings,

depositions,

answers

to

interrogatories, and admissions on file, together with the affidavits, if any, which it
believes demonstrate the absence of a genuine issue of a material fact.” Celotex,
477 U.S. at 323 (internal quotation omitted). If the movant meets this burden, the
burden shifts to the party opposing summary judgment to go beyond the
pleadings and present specific evidence showing that there is a genuine issue of
material fact, or that the movant is not entitled to judgment as a matter of law. Id.
at 324-26. This evidence must consist of more than conclusory allegations. See
Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). Summary judgment must

2

be entered “against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
B.

Factual Summary

This case arises from the decision in March 2012 not to renew Plaintiff
Shadawn Powell’s contract as a special education teacher at S. L. Mason
Elementary School (“Mason Elementary School”) in the Valdosta City School
District (“the School District”). Plaintiff Shadawn Powell (“Plaintiff”) first began
teaching at Mason Elementary School in the 2009–2010 school year, and she
remained at the school until the non-renewal decision. During these years,
Defendant William Cason (“Superintendent Cason”) was the superintendent of
the School District, Defendant John Davis (“Principal Davis”) was the principal at
Mason Elementary School, and Defendant Katie Chappuis (“Chappuis”) and
Francisco Diaz (“Diaz”) were the assistant principals at the school. The principal
and assistant principals were Plaintiff’s supervisors. (Defendants’ Statement of
Undisputed Material Facts (“DSMF”), Doc. 28, ¶¶1–3).
Prior to November 1, 2011, Plaintiff’s supervisors perceived her teaching
performance as satisfactory, but beginning around that date Plaintiff repeatedly
came into conflict with the school’s administrators. (Id. at ¶¶5–7; Deposition of
Principal John Davis, Doc. 41-3, p. 152). In late October 2011, Plaintiff reported

3

to her supervisors and others what she believed was a case of student neglect
after observing another teacher tending A. D., a young, female student who was
crying and whose vaginal and rectal areas were bloody and unclean. On
November 1, 2011, Plaintiff reported signs of biting insects, which were possibly
fleas, in A. D.’s hair. Soon after this report, Principal Davis confronted Plaintiff
and, visibly upset, told her to stop making reports of suspected abuse or neglect
to the school counselor and to report such cases only to him. (Ex. 7 to
depositions, Doc. 42-1; Declaration of Plaintiff, Ex. 5 to Plaintiff’s Response to
DSMF, Doc. 32-3, ¶10; Declaration of Alexis Smith Hughes, Ex. 4 to Plaintiff’s
Response to DSMF, Doc. 32-3, ¶6). Davis also told Chappuis about A. D.’s
bleeding. (Deposition of Katie Chappuis, Doc. 41-4, pp. 123–26).
During the 2011–2012 school year, state law required teachers at Mason
Elementary School who had “reasonable cause to believe that a child ha[d] been
abused [to] report … that abuse” and to “notify the person in charge of the facility,
or the designated delegate thereof.” O.C.G.A. §§ 19-7-5(c)(1)–(2) (2011). This
legal duty was also set out in the School District’s policy and the protocols in
place at the Mason Elementary School. (Board Policy on Child Abuse or Neglect,
Ex. 6 to depositions, Doc. 42-1; Child Abuse Reporting Protocol, Ex. 32 to
depositions, Doc. 42-3; Davis Depo., pp. 79–83). Principal Davis was the person
in charge of the elementary school, and he had designated a number of

4

individuals as persons to whom abuse reports could be made, including the
assistant principals, the school’s nurse, and the school’s counselor. Georgia law
requires that once a report of abuse is made to a principal or a designated
delegate, then the Georgia Division of Family and Children Services (“DFCS”)
must be notified of the report. (Id. at 73–78, 82). The School District mandated
that the school administrator or the reporter also immediately notify the school’s
counselor and social worker, who would report the suspected abuse to DFCS.
(Child Abuse Reporting Protocol).
After being corrected by Principal Davis, Plaintiff also received a formal
written warning from Assistant Principal Diaz on November 15, 2011 for being
late to her duty station. Although Chappuis was the assistant principal
responsible for supervising Plaintiff’s teaching during the 2011–2012 school year,
Diaz supervised Plaintiff in her non-teaching duties, which involved monitoring a
particular hall when students arrived in the morning and required her to be at her
post at 7:40. (Deposition of Plaintiff, Doc. 41-1, pp. 43, 52–54). On November 15,
Diaz issued the warning to Plaintiff for being tardy to her post and failing to let her
assigned contact person at the school know that she would be late. Diaz
informed Plaintiff of the reasons for the warning and said that he would leave the
warning in her box for her signature and any comments she might have.
(Warning, Ex. 21A to depositions, Doc. 42-1; Plaintiff’s 11/17/11 Memo, Ex. 21G

5

to depositions, Bates-stamped D 511, Doc. 42-1; Plaintiff’s 12/1/11 Email, Ex.
21K to depositions, Bates-stamped D 509, Doc. 42-1). On the form, Diaz had
indicated that this was her second warning for tardiness. The warning notice had
a place for Plaintiff to mark whether she agreed or disagreed with Diaz’s
description of her behavior, and it had a signature line showing that she had read
and understood the warning notice. Because this was the first warning Plaintiff
had received that school year, she delayed on signing the document until she
could speak with a representative from the teachers’ union. (Plaintiff Depo., pp.
110–13, 120–22; Plaintiff Declar., ¶11).
On November 17, Diaz entered Plaintiff’s classroom and demanded that
she immediately sign the warning notice. When Plaintiff said that she did not
have time to discuss the warning because she was in the middle of preparing to
meet with students’ parents concerning Individualized Education Plans (“IEPs”)
for the students, Diaz became irate, raised his voice, and threatened to force her
to sign and return the form by the end of the day, saying that she could attach
any comments later. Plaintiff insisted that she would only sign the form when she
was prepared to attach her comments. (Id.; Hughes Declar., ¶¶7–8).
Diaz informed Davis and Chappuis of this conversation. On November 30,
2011, Diaz emailed Plaintiff, copying Davis and Chappuis on the email, informing
her that on that day he had placed the warning in her personnel file with “refusal

6

to sign” written on the form. In the email, Diaz wrote that on November 15 he had
placed the warning in Plaintiff’s box and that he had told her she had five days in
which to attach comments to the warning. He wrote that on “November 16th,
2011” he had requested Plaintiff to return the warning with her signature.
According to Diaz, Plaintiff had persisted in refusing to do so because she did not
want to sign the form until she could submit her comments, even though Diaz
reminded her that she had five days in which to attach them. (Diaz’s 11/30/11
Email, Ex. 21J to depositions, Bates-stamped D 511, Doc. 42-1).
The next day, December 1, 2011, Plaintiff replied to Diaz’s email, copying
Davis and Chappuis on her response. She denied that on November 15 Diaz had
told her that she had five days to add comments to the warning. She also
corrected him by noting, accurately, that their conversation in her classroom had
occurred on November 17. More importantly, she described Diaz as having acted
“in a very unprofessional manner,” raised his voice, engaged in an
“unprofessional tirade,” and demanded that she “sign a statement that was
factually incorrect.” Plaintiff wrote that her students, her teaching assistants, and
a college intern were present during Diaz’s outburst. (Plaintiff’s 12/1/11 Email).
Davis never investigated the incident. (Davis Depo., pp. 192–94). Under the
School District’s policies, a principal should investigate a teacher’s complaints
that an assistant principal behaved in such an unprofessional, disrespectful

7

manner as Diaz did. (Deposition of William Cason, Doc. 41-2, pp. 29–40;
Deposition of Sheila (Mason) Lawson, Doc. 41-5, pp. 61–66).
Under the evaluation method used by the School District for the 2011–
2012 school year, school administrators were required to conduct at least three
formal, unannounced observations of all teachers who had less than three years
of teaching experience. (GTEP Evaluation Manual, Ex. 24–25 to depositions,
Doc. 42-2, p. 5; Cason Depo., pp. 77–79). At that time, the School District was
using the Georgia Teacher Observation Instrument (“GTOI”) to assess teachers’
classroom performances and the Georgia Teacher Evaluation Program (“GTEP”)
for the annual evaluations of the teachers. (Id. at 8, 17, 40–44). These tools were
used to appraise both regular and special education teachers. Under the GTOI,
before observing a teacher an administrator was required to be fully informed
and prepared so that the teaching performance could be fairly critiqued in light of
the teacher’s objectives. (Lawson Depo., pp. 16–20). One aspect of assessing
special education instructors was determining whether their students were
progressing in the students’ individual education programs, or IEPs. (Cason
Depo., pp. 48–50). To ensure a fair outcome under the GTOI and the GTEP, the
teachers had the right to unbiased observations and evaluations. (Id. at 78).
On December 7, 2011, Chappuis conducted a formal, unannounced
observation of Plaintiff’s teaching. Prior to observing Plaintiff, Chappuis did not

8

review all of the IEPs for Plaintiff’s students, so the assistant principal did not
know what the goals and objectives of Plaintiff’s teaching were on the day of the
observation. (Chappuis Depo., pp. 13–31, 141–46). Out of the eleven categories
on the evaluation form used by Chappuis for the observation, she rated Plaintiff
as needing improvement in three areas: instructional level, building for transfer,
and use of time. (12/7/11 Observation, Ex. 9 to depositions, Doc. 42-1).
After this observation, Plaintiff continued reporting possible abuse of her
students. On January 2, 2012, Plaintiff told Chappuis and the school nurse that
A. D. had fleas in her hair and emitted a strong smell of animals. Some ten days
later, Plaintiff reported to Chappuis and the nurse that a different student, C. T.,
exhibited a protruding abdomen, yellowish-brown coloration of the skin, and
watery

stools.

(Attachment

C

to

Plaintiff’s

Responses

to Defendants’

Interrogatories, Ex. 1 to Plaintiff’s Response to DSMF, Doc. 32-2; Plaintiff
Declar., ¶15).
On February 1, 2012, Diaz conducted another formal observation of
Plaintiff. (2/1/12 Observation, Ex. 10 to depositions, Doc. 42-1). From the
beginning of the 2011–2012 school year until this observation, Diaz had reviewed
some of the IEPs for Plaintiff’s students, but there is no evidence that he
reviewed the IEPs specifically in preparation for observing Plaintiff. (Deposition of
Francisco Diaz, Doc. 41-7, pp. 23–27). Diaz noted on the evaluation form that

9

Plaintiff needed improvement in three areas: instructional level, building for
transfer, and supporting students. Thus, Plaintiff had a total of six “needs
improvement” assessments from her first two observations in the 2011–2012
school year. (Davis Depo., pp. 212–13).
The School District’s teacher evaluation program required that a school
attempt to remediate a teacher’s deficiencies if she received five or more “needs
improvement” ratings in a particular school year. The school administration had
to place the teacher into an extended phase evaluation process to further
scrutinize her performance. The evaluation policy directed administrators to hold
a conference with the teacher and attempt to craft a professional development
plan that would improve the teacher’s work. (GTEP Evaluation Manual, p. 9;
Cason Depo., pp. 73–78, 89–90; Lawson Depo., pp. 20–25; Davis Depo., pp.
212–15;). Despite the policy’s clear guidelines, Plaintiff was never placed on an
extended phase evaluation, a remediation conference was never held, and she
was not offered a professional development plan. (Id. at 204–06, 213–16).
In December 2011 and on January 20, 2012, Diaz gave Principal Davis
memoranda claiming that he had video recordings from the school’s security
cameras showing that Plaintiff was late to her duty station on December 6,
January 18, and January 19. The memorandum relating to December 6 states
that the “video clip has a three minute delay from actual school time.” (December

10

2011 Memo, Ex. 21L to depositions, Bates-stamped D 508, Doc. 42-1; 1/20/12
Memo, Ex. 21N to depositions, Bates-stamped D 506, Doc. 42-1; Diaz Depo., pp.
214–19). Plaintiff did not learn about Diaz’s memoranda or the video recordings
until after the non-renewal decision. She denies that she was late on the dates in
question, contends that the time on the recordings from the security camera was
faster than the school’s clock, and provides evidence that the woman in some of
the videos was her sister, who also worked at the school.1 (Plaintiff Declar., ¶14;
Declaration of LaShaundra McGhee, Ex. 31 to Plaintiff’s Response to DSMF,
Doc. 32-4, ¶9). Prior to making the recommendation that Plaintiff’s contract not
be renewed, Principal Davis never reviewed the video recordings. (Davis Depo.,
pp. 166–68; Diaz Depo., pp. 216–19).
From February 13 through March 19, 2012, Plaintiff continued reporting
possible abuse of her students. (Plaintiff Declar., ¶15). Plaintiff was still observing
fleas and the smell of an animal on A. D., which Plaintiff repeatedly brought to
the attention of Principal Davis and Chappuis. (Ex. 29 to Plaintiff’s Response to
DSMF). Plaintiff also related continuing concerns over C. T. He had developed a
rash on his bottom, and his parents were not providing him with pull-ups to use at
school. (Ex. 20, 33 to Plaintiff’s Response to DSMF).

1

The Court has reviewed the video recordings (Ex. 15 to Plaintiff’s Response to DSMF)
and cannot tell whether Plaintiff appears in them or not.
11

On March 19, 2012, Principal Davis and Chappuis met with Plaintiff to
express concerns over how she was handling confidential information about her
students. Chappuis accused Plaintiff of telling a student’s parent that A. D. had
brought fleas into the classroom. Chappuis raised her voice and was verbally
aggressive during the conversation. Becoming upset, Plaintiff denied the
accusation and said that she had only told the parent that there was a “situation”
in the classroom and suggested speaking with Chappuis. Frustrated that there
were still fleas on her students despite her multiple reports, Plaintiff told
Chappuis that she “had to be the voice for my students or no one else would.”
(Plaintiff Declar., ¶16). Following the meeting, Chappuis wrote a memorandum
providing her account of the conversation and the events leading up to it, and
she gave a copy of the memorandum to Principal Davis. (Chappuis Depo., pp.
176–85). Both administrators signed the memorandum. According to Chappuis,
“in the discussion with [Plaintiff] I stated that it had been brought to our attention
that there had been made statements that she was not satisfied with how we
chose to handle the flea situation. I also stated that … I did feel as though she
had not been satisfied with the result of how the situation (child with fleas) had
been addressed….” (Chappuis’s Memo, Ex. 41 to depositions, Doc. 42-3).
On March 22, Principal Davis recommended, in a memorandum to the
School District’s human resources director, that Plaintiff’s contract not be

12

renewed. (3/22/12 Memo, Ex. 19 to Plaintiff’s Response to DSMF, Doc. 32-3). In
support of the recommendation, Davis submitted documents from Plaintiff’s
personnel file that included, among other things, the assessment forms from two
observations of Plaintiff; the annual evaluations of Plaintiff from the two previous
school years; emails and memoranda about Diaz’s warning to Plaintiff for
allegedly being tardy on November 15, 2011; Chappuis’s memorandum about
the conversation with Plaintiff on March 19, 2012; and Diaz’s memorandum
concerning the video recordings.

These documents were provided to

Superintendent Cason. (Ex. 76 to depositions, Doc. 42-7; Cason Depo., pp. 80–
83). Principal Davis also spoke with the superintendent around March 26 and
said that Plaintiff’s performance as a teacher had declined and that she was
increasingly difficult to manage. (DSMF, ¶19).2
Superintendent Cason was responsible for deciding whether to accept the
principal’s non-renewal recommendation. The superintendent was required to
submit the name of any teacher whose contract he wanted to renew to the
School District’s Board of Education for approval. (Declaration of Superintendent
Cason, Doc. 28-3, ¶¶8, 11). In weighing Plaintiff’s employment fate,
Superintendent Cason relied on the accuracy of the information contained in the
documents sent by Principal Davis. (Cason Depo., pp. 81–82, 99–101). Agreeing
2

Plaintiff denies this fact, but she has not provided evidence to controvert it, as required
by Local Rule 56. Principal Davis’s affidavit provided in support of this fact does not, as
Plaintiff argues, conflict with his deposition testimony.
13

with the decision not to renew Plaintiff’s contract, the superintendent did not
provide Plaintiff’s name to the board of education for approval. On March 29, the
School District’s human resources director emailed Principal Davis to let him
know that his recommendation had been accepted. (DSMF, ¶¶21–23).
Meanwhile, on March 27, Chappuis conducted a third observation of
Plaintiff for the 2011–2012 school year. The assistant principal marked Plaintiff
as needing improvement in four areas. (Ex. 11 to depositions, Doc. 42-1). Before
Plaintiff received a copy of the assessment form from the March 27 observation,
she was given her annual evaluation on March 29. The evaluation, which was
signed by Chappuis and Principal Davis, described Plaintiff’s performance as
“unsatisfactory.” (2011–2012 Annual Evaluation, Ex. 12 to depositions, Doc. 421; Plaintiff Depo., pp. 79–82). When Plaintiff asked Principal Davis about the
evaluation, he said that he did not know why she had been given an
unsatisfactory rating and that she would have to ask Chappuis. Plaintiff had a
conference with the principal and assistant principal on April 11, and Chappuis
told her that she had been given a poor evaluation because of her tardiness. (Id.
at pp. 79–86).
On April 23, 2012, Plaintiff learned for the first time that her contract had
not been renewed. She received a letter from Superintendent Cason informing
her of this fact, and she also had a conversation with Principal Davis. Plaintiff

14

asked the principal for information on how she could improve her performance,
but he never told her. (Plaintiff Declar., ¶22; 4/23/12 Letter, Ex. 16 to depositions,
Doc. 42-1).
Plaintiff filed a lawsuit in this Court on April 19, 2013. She has sued Katie
Chappuis, Principal John Davis, Superintendent William Cason,3 and the
Valdosta City School District (collectively “Defendants”). She alleges that
Defendants unlawfully retaliated against her in violation of the Americans with
Disabilities Act, 42 U.S.C. § 12203 (“ADA”); the Rehabilitation Act of 1973,
Section 504, 29 U.S.C. § 794 (“Rehab Act”); and the Georgia Whistleblower Act,
O.C.G.A. § 45-1-4. According to Plaintiff, over the course of several months
Defendants punished her for reporting suspected child abuse of her students by
giving her bad performance reviews, inventing accounts of her tardiness and
insubordination, and recommending her non-renewal for trumped-up reasons.
(Amended Complaint, Doc. 4, ¶¶12–50). Plaintiff also alleges that Chappuis and
Principal Davis are liable for intentional infliction of emotional distress, evidently
based on the manner in which they rebuked her. (Id. at 51–56).

3

Plaintiff sues Superintendent Cason and Chappuis in both their individual and official
capacities. Principal Davis has been sued in his individual capacity only. It is well
established that an official-capacity claim is really nothing more than a claim against the
entity employing the individual defendant, so where the entity has been made a party to
the lawsuit, the official-capacity claim should be dismissed as redundant. See Kentucky
v. Graham, 473 U.S. 159, 165–68, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); Griswold v.
Ala. Dep’t of Indus. Relations, 903 F. Supp. 1492, 1497 (M.D. Ala. 1995). Therefore, the
Court dismisses the official-capacity claims.
15

C.

Analysis

Defendants’ motion for summary judgment is granted in part and denied in
part. The undisputed factual record shows that questions of fact remain with
regard to Plaintiff’s retaliation claims against Principal Davis, Chappuis, and the
School District. However, the intentional infliction of emotional distress claim is
dismissed, as well as all of the claims against Superintendent Cason.
1.

Retaliation Claim under the ADA and the Rehab Act

Summary judgment is denied with regard to Plaintiff’s claim that Principal
Davis, Chappuis, and the School District violated the anti-retaliation provisions of
the ADA and Section 504 of the Rehab Act. However, summary judgment is
granted on the retaliation claim against Superintendent Cason.
Because Plaintiff alleges that she suffered retaliation for demanding that
equal access to public services be afforded to her disabled students, i.e., she
reported suspected abuse and neglect to protect their welfare, her claim falls
under Title II of the ADA. See Shotz v. City of Plantation, Fla., 344 F.3d 1161,
1166 n. 5 (11th Cir. 2003). Under Title II, individual defendants such as
Chappuis, Principal Davis, and Superintendent Cason may be liable for
retaliation, see id. at 1179–80, and a plaintiff is not required to exhaust her
administrative remedies before filing suit. Bledsoe v. Palm Beach Cnty. Soil &
Water Conserv. Dist., 133 F.3d 816, 824 (11th Cir. 1998). Furthermore, “[c]laims

16

under Section 504 [of the Rehab Act] are subject to the same legal framework as
ADA claims.” Wilbourne v. Forsyth Co. Sch. Dist., 306 F. App’x 473, 476 (11th
Cir. 2009) (per curiam) (addressing a retaliation claim under the ADA by a
teacher who had reported abuse of a student). Moreover, because the ADA’s
anti-retaliation provision is “similar to Title VII’s prohibition on retaliation,”
retaliation claims brought under the ADA and Section 504 are analyzed in the
same way as Title VII retaliation claims. Id. at 475–76 (internal quotation and
citation omitted). Establishing a prima facie retaliation claim thus requires Plaintiff
to show: “(1) that [s]he engaged in statutorily protected activity; (2) that [s]he
suffered an adverse employment action; and (3) a causal link between the
protected activity and the adverse action.” Standard v. A.B.E.L. Servs., Inc., 161
F.3d 1318, 1328 (11th Cir. 1998); see also Shotz, 344 F.3d at 1180.
In cases such as this one, where the plaintiff does not bring forward direct
evidence of retaliation, the court must analyze the claim using the familiar
burden-shifting framework for retaliation cases. See Alvarez v. Royal Atl.
Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010); see also Wilbourne, 306
F. App’x at 475–76. A plaintiff must first establish a prima facie case of
retaliation. Johnson v. Booker T. Washington Broad. Servs., Inc., 234 F.3d 501,
507 n. 6 (11th Cir. 2000). If she is able to do so, the burden shifts to the
defendant to provide a non-retaliatory reason for the adverse employment action.

17

Id. Assuming such a reason is provided, the plaintiff must address the proffered
reason head on and rebut it, showing that it was merely pretext for retaliation. Id.
At all stages of the analysis, the burden of persuasion rests on the plaintiff.
Alvarez, 610 F.3d at 1264.
Plaintiff is able to establish a prima facie case of retaliation against
Defendants. Plaintiff’s reports of abuse provide the first element of a retaliation
claim. See Whitehead By and Through Whitehead v. Sch. Bd. for Hillsborough
Cnty., Fla., 918 F. Supp. 1515, 1522 (M.D. Fla. 1996) (“retaliatory acts [by
recipients of federal funds] are prohibited against persons who complain of
unlawful discrimination in violation of § 504 on behalf of a handicapped
individual”). There is also evidence for the second element of the prima facie
case. The non-renewal of Plaintiff’s contract was certainly an adverse
employment action, but so were the negative results of Chappuis’s observations
of Plaintiff, the critical annual evaluation, and Principal Davis’s recommendation
that Plaintiff’s contract not be renewed. See Crawford v. Carroll, 529 F.3d 961,
974 (11th Cir. 2008) (noting that an “unfavorable performance review … clearly
might deter a reasonable employee from pursuing” a protected activity).
Plaintiff has also been able to show a causal link between the adverse
actions and her reports of abuse, supplying the third element of the prima facie
case. Plaintiff need only show that her reports and the adverse actions were “not

18

completely unrelated.” Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004)
(internal quotation and citation omitted). A plaintiff can demonstrate prima facie
causality by establishing a defendant’s knowledge of the protected activity and
close temporal proximity between the activity and the purported retaliation. Id.
There is evidence that on March 19, 2012 Principal Davis and Chappuis knew of
Plaintiff’s reports that her students were continuing to experience abuse and
neglect. Within two weeks from that date, Principal Davis recommended that
Plaintiff’s contract not be renewed, and Chappuis gave her a poor assessment
after an observation and a negative annual evaluation. As for Superintendent
Cason, the materials provided to him for review before deciding on whether to
renew Plaintiff’s contract included multiple references to recent reports she had
made about child abuse. A jury could, thus, reasonably infer from these
circumstances that he thus had notice of her reports. Since the causal link has
been made with regard to the individual Defendants, causality has been shown
for the School District as well.
Now turning to see if Defendants have offered legitimate reasons for the
adverse actions taken against Plaintiff, the Court is convinced that they have.
They do not have to convince the Court that they were actually motivated by
these reasons but only that a reasonable jury could find that they were not
retaliating against Plaintiff. See Combs v. Plantation Patterns, 106 F.3d 1519,

19

1528 (11th Cir. 1997). Defendants assert that they gave Plaintiff poor ratings and
evaluations as a teacher and finally decided not to renew her contract because
she was a bad teacher, she could not get along with other teachers and the
school administration, she was tardy to work, and she was insubordinate.
(Packet for Dep’t of Labor, Ex. 75 to depositions, Doc. 42-7, p. 1; Lawson Depo.,
pp. 72–75; DSMF, ¶¶19–21). There is unquestionably some evidence in the
record that Plaintiff’s performance at Mason Elementary School suffered from
these deficiencies. These would certainly be valid reasons for Defendants’
actions, so they have met their burden.
The burden now shifts to Plaintiff to call into question whether Defendants’
proffered explanations are only masks for retaliation. Plaintiff must meet each of
the Defendants’ reasons head on and rebut it. See Crawford v. City of Fairburn,
Ga., 482 F.3d 1305, 1308 (11th Cir. 2007). She must do so “either directly by
persuading the court that a [retaliatory] reason more likely motivated the
employer or indirectly by showing that the employer’s proffered explanation is
unworthy of credence.” Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248,
256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Evidence of pretext may be found in
“an employer’s failure to articulate clearly and consistently the reason for an
employee’s discharge” as well as in “an employer’s deviation from its own

20

standard procedures.” Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d
1286, 1298–99 (11th Cir. 2006).
There is a question of fact for whether Chappuis’s stated reasons for giving
Plaintiff a poor annual evaluation and assessing “needs improvement” ratings on
the observations were merely pretexts for retaliating against the teacher for
reporting suspected child abuse. Chappuis claims that Plaintiff’s performance as
a teacher in the 2011–2012 school year was deficient. However, Plaintiff’s
teaching had been deemed satisfactory in the two preceding school years, and
many of Plaintiff’s students in 2011–2012 were progressing in their IEPs, which is
one means of determining how well a teacher is performing. When Plaintiff had
asked the assistant principal why her contract would not be renewed, the answer
was her tardiness to work, not her deficiencies in the classroom. Furthermore,
Chappuis never offered Plaintiff a professional development plan after she
received more than five “needs improvement” ratings, which was required by the
School District’s policy to assist poorly performing teachers.
Plaintiff has also created a question of fact for whether Principal Davis’s
stated reasons for not renewing Plaintiff’s contract were actually covers for
retaliation. The principal asserts that he recommended non-renewal because
Plaintiff supposedly had trouble getting along with others at the school, was tardy
to work, and was a poor teacher. With regard to Plaintiff’s supposed uncongenial

21

attitude, Defendants have offered little evidence for specific instances of
Plaintiff’s difficult behavior. Diaz does claim that Plaintiff responded defensively
and disrespectfully when he confronted her about signing the warning for being
tardy, but both Plaintiff and a witness state that it was actually Diaz who was rude
and unprofessional. Principal Davis knew about the personality conflict between
Plaintiff and Diaz but never investigated Plaintiff’s account for what had occurred,
something that Superintendent Cason testified should have been done. The
principal also took Diaz’s word concerning Plaintiff’s tardiness, not even
bothering to check sign-in sheets or watch the video recordings even though
Diaz told him there was a discrepancy between the time recorded on the security
camera and the school’s clock. Thus, a jury could conclude that the principal
used the allegations of insubordination and tardiness as pretexts for ending
Plaintiff’s employment after her repeated reports of abuse.
A reasonable jury could also question whether Plaintiff’s deficiencies as a
teacher were really what led Principal Davis to recommend non-renewal of her
contract. The principal testified in his deposition that he concluded Plaintiff’s
performance had declined based on his own informal walk-throughs while
Plaintiff was teaching, conversations with the assistant principals, and the formal
observations of Plaintiff. However, Plaintiff denies that the principal ever
informally observed her classroom, and he admits that he cannot recall how often

22

he came into her classroom or what he saw in Plaintiff’s teaching that concerned
him. Moreover, while knowing of the tension between Diaz and Plaintiff, the
principal allowed Diaz to do a formal observation of Plaintiff, which a jury might
reasonably perceive as compromising the integrity of the observation. As with
Chappuis, a jury might also conclude from Principal Davis’s violation of the
School District’s policies by not proposing remediation to Plaintiff that he did not
view her as being a poor teacher and only claimed that as an excuse to retaliate
against her. The fact that the principal recommended non-renewal even before
Chappuis had done the third observation of Plaintiff or completed the annual
evaluation of the teacher also supports such a conclusion.
Although Plaintiff has raised questions of fact with regard to Chappuis’s
and Principal Davis’s motives, she has not done so for Superintendent Cason.
There is no evidence that the superintendent was angered by Plaintiff’s reports of
child abuse, in fact the only evidence he even knew of such reports is a
reference

to

them

in

the

materials

submitted

with

the

non-renewal

recommendation. The superintendent was supplied with information from the
principal and assistant principals at Plaintiff’s school that she was a poor teacher,
that she arrived late to school, and that she had a difficult attitude. Unlike
Chappuis and Principal Davis, there is no evidence Superintendent Cason
departed from the School District’s policies or otherwise rigged the evaluations of

23

Plaintiff’s work. A jury thus has no grounds for disbelieving what the
superintendent says were his reasons for deciding not to renew Plaintiff’s
contract, regardless of whether Plaintiff was in fact a poor teacher, tardy, or
insubordinate. See Alvarez, 610 F.3d at 1266. The retaliation claim against the
superintendent must be dismissed because Plaintiff has not carried her burden of
producing evidence that his proffered explanations were pretexts for retaliation.
Even though summary judgment is granted on the retaliation claim against
Superintendent Cason, it is denied on the retaliation claim against the School
District. On multiple occasions a panel of the Eleventh Circuit has applied Title
VII retaliation cases as precedent for cases, such as this one, involving retaliation
claims under the ADA and Section 504. See Wilbourne, 306 F. App’x at 475–76;
Shotz, 344 F.3d at 1180–81. In what has come to be known as the “cat’s paw”
theory,4 courts have held in Title VII cases that employers may be held liable for
retaliation even if the titular decisionmaker had no retaliatory motives if “the
decisionmaker followed the biased recommendation without independently
investigating the complaint against the employee.” Stimpson v. City of
Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999) (applying the theory to a Title
VII discrimination claim); see also Pennington v. City of Huntsville, 261 F.3d
1262, 1270 (11th Cir. 2001) (applying the same analysis to a Title VII retaliation
4

In Staub v. Proctor Hospital, the Supreme Court described the colorful history of this
term as used in federal jurisprudence. ___ U.S. ___, 131 S.Ct. 1186, 1190 n. 1, 179
L.Ed.2d 144 (2011).
24

claim). In such circumstances, the official decisionmaker is merely the conduit, or
“cat’s paw,” of the recommender’s unlawful animus, so the employer is still liable
for the recommender’s retaliation. Stimpson, 186 F.3d at 1332.
Applying the “cat’s paw” theory to Plaintiff’s claims under the ADA and
Section 504 shows that a question of fact remains for whether the School District
is liable for retaliation. Superintendent Cason was charged with the ultimate
authority for deciding whether to submit Plaintiff’s name for approval by the board
of education, a pre-condition for renewing her contract. When viewed in Plaintiff’s
favor, the record shows that the superintendent did nothing to verify the
information provided to him by the administrators at Mason Elementary School.
He never undertook an observation of Plaintiff in her classroom. He did not speak
with her about her reports of child abuse or her interactions with the
administrators. The School District would have been shielded from liability on the
retaliation claims if Superintendent Cason had independently investigated and
confirmed the criticisms of Plaintiff, for then the non-renewal decision would have
been untainted by Principal Davis’s and Chappuis’s retaliatory motives. See
Pennington, 261 F.3d at 1270-71. Because he did not do so, a jury could
reasonably conclude that he was nothing more than a “cat’s paw,” and summary
judgment is denied on the retaliation claims against the School District.

25

2.

Claim under the Georgia Whistleblower Act

Plaintiff also alleges that Defendants violated the anti-retaliation provision
of the Georgia Whistleblower Act. To make out a prima facie case of retaliation
under the statute, “the employee must present evidence that (1) the employer
falls under the statute’s definition of ‘public employer’; (2) the employee disclosed
‘a violation of or noncompliance with a law, rule, or regulation to either a
supervisor or government agency’; (3) the employee was then discharged,
suspended, demoted, or suffered some other adverse employment decision by
the public employer; and (4) there is some causal relation between…” the
disclosure and the employment action. Forrester v. Ga. Dep’t of Human Servs.,
308 Ga. App. 716, 722, 708 S.E.2d 660, 666 (2011) (quoting and citing O.C.G.A.
§ 45-1-4(a)). Georgia courts have looked to federal jurisprudence on retaliation
claims to determine whether the causal link has been established, which is the
only element Defendants claim Plaintiff has not established. See, e.g., Freeman
v. Smith, 324 Ga. App. 426, 428–31, 750 S.E.2d 739, 741–43 (2013); Forrester,
308 Ga. App. at 721–22, 708 S.E.2d at 665–66. Therefore, the Court’s analysis
of the retaliation claims under the ADA and Section 504 also applies to the
retaliation claim under the Georgia Whistleblower Act. Summary judgment is
granted for the state retaliation claim against Superintendent Cason but denied
with respect to the other Defendants.

26

3.

Intentional Infliction of Emotional Distress Claim

The motion for summary judgment on Plaintiff’s claim for intentional
infliction of emotional distress is granted. To establish this claim, Plaintiff is
required to produce some evidence for each of “the following elements: (1) the
conduct must be intentional or reckless; (2) the conduct must be extreme and
outrageous; (3) there must be a causal connection between the wrongful conduct
and the plaintiff’s emotional distress; and (4) the emotional distress must be
severe.” Udoinyion v. Re/Max of Atlanta, 289 Ga. App. 580, 584, 657 S.E.2d 644
(2008). To qualify as sufficiently “extreme and outrageous,” the behavior “‘must
be so extreme in degree, as to go beyond all possible bounds of decency, and to
be regarded as atrocious, and utterly intolerable in a civilized society.’” Id.
(quoting Kaiser v. Tara Ford, Inc., 248 Ga. App. 481, 488, 546 S.E.2d 861
(2001)). Conduct does not rise to this level merely because it is unkind or hurts
someone’s feelings. Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1229 (11th Cir.
1993). Whether behavior is “extreme and outrageous” is “a question of law
governed by an objective standard: the evidence must show that reasonable
persons might find the presence of extreme and outrageous conduct.” Id.
No reasonable jury could find the Defendants’ actions to have been
extreme and outrageous. While Plaintiff did weep on different occasions when
Principal Davis and Chappuis raised their voices in rebuking her, such insults

27

and indignities of everyday life, if Defendants’ actions even qualify as such, do
not constitute extreme and outrageous conduct. See Moses v. Prudential Ins. Co.
of Amer., 187 Ga. App. 222, 225, 369 S.E.2d 541 (1988). Nor would anything
else the Defendants did be considered intolerable by a civilized society. Giving
an employee a poor evaluation and informing her that her contract would not be
renewed might be humiliating for the employee, but such actions are insufficient
to establish an intentional infliction of emotional distress claim. See Clark, 990
F.2d at 1229 (noting that “an employer’s termination of an employee—however
stressful to the employee—generally is not extreme and outrageous conduct”).
II.

Motion to Exclude Testimony from Delvin-Brown
The Court now turns to Defendants’ Daubert motion to exclude the

testimony of Dr. Angela Delvin-Brown (“Delvin-Brown”), Plaintiff’s proposed
expert. In analyzing this motion, the Court has reviewed Delvin-Brown’s
amended expert report (Doc. 26-1),5 her curriculum vitae (“CV”) (Doc. 29-1, pp.
16–25), and her declaration in opposition to Defendants’ motion for summary
judgment (Ex. 30, Doc. 32-4). What is not included in the record is a deposition of
Delvin-Brown, because Defendants’ attorney chose not to depose her. Thus, the

5

The amended expert report is dated March 31, 2014, which is several weeks after the
deadline by which Plaintiff was to have served supplemental reports to Defendants.
(See Order, Doc. 22). Because Defendants have not objected to the report’s being
untimely and the Court is not aware what, if any, substantive differences exist between
the original report and the amended version, at this time the Court will not exclude the
report simply because it fails to comply with the discovery deadlines.
28

Court has limited information to use in assessing the arguments raised by
Defendants’ Daubert motion.
A.

Standard for Daubert Motions

Under the standard for testing proposed expert testimony, Plaintiff has the
burden of establishing, by a preponderance of the evidence, a foundation for
admitting Delvin-Brown’s testimony. See Corvey v. Baxter Healthcare Corp., 298
F.3d 1253, 1256 (11th Cir. 2002). Whether Delvin-Brown’s opinions qualify as
expert testimony depends on if: (a) her “scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or to determine a
fact in issue; (b) the testimony is based on sufficient facts or data; (c) the
testimony is the product of reliable principles and methods; and (d) the expert
has reliably applied the principles and methods to the facts of the case.” Fed. R.
Evid. 702. The Court must act as a “gatekeeper” to determine whether any of
Delvin-Brown’s opinions meet this standard. See Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579, 589–90, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In this role,
the Court must engage in a “rigorous three-part inquiry” and ask whether: 1)
Delvin-Brown is qualified to competently testify regarding the matters for which
she offers an opinion; 2) her methodology is sufficiently reliable under the
Daubert standard; and 3) her testimony would assist the jury, through the
application of scientific, specialized, or technical expertise, to determine a fact in

29

issue or understand the evidence. See United States v. Fazier, 387 F.3d 1244,
1260 (11th Cir. 2004).
B.

Delvin-Brown’s Opinions

Delvin-Brown offers four opinions as expert testimony. The Court will do its
best to summarize her opinions despite the loose, rambling structure of her
report. First, if allowed, Delvin-Brown would testify that the distinct demands of
special education dictated how Plaintiff taught her students, who varied in their
abilities and ages. Second, Delvin-Brown would relate that the Mason
Elementary School administrators did not properly administer the GTOI
observations of Plaintiff because they were not familiar with the students’ IEPs or
the challenges created by their particular needs. A special education teacher
should be evaluated in terms of the progress her students are making in their
IEPs, and Plaintiff’s students demonstrated such progress. Third, Delvin-Brown
would opine that the “needs improvement” ratings assigned to Plaintiff were
based on expectations for how a class with non-disabled students functioned,
rather than a special education class like Plaintiff’s. Thus, the “needs
improvement” ratings Plaintiff received do not accurately describe her teaching
performance. Fourth, Delvin-Brown would state that Plaintiff seemed to
understand her job duties and the needs of her students, that they made

30

progress under her teaching, and that she “was a strong advocate for the needs
of her students….” (Amended Expert Report, pp. 13–15).
C.

Delvin-Brown’s Qualifications

Delvin-Brown is qualified to offer these opinions. She has undergraduate,
master’s, and doctorate degrees in education. Since 1991 she has served as a
private educational consultant providing training and evaluation to teachers and
administrators on various topics including differentiated instruction, instructional
modifications for general classroom teachers, special education, teaching and
learning strategies, special education transition services, and IEP development.
She has taught courses in special education at multiple universities. From 1981–
1991, Delvin-Brown was a consultant for the Georgia Department of Education in
areas such as policy development and implementation, state and federal
regulations, monitoring, and creation of training manuals. She developed the IEP
resource guide for the Georgia Department of Education and has published and
given presentations on teacher assessment, teacher training, and special
education. In sum, Delvin-Brown is highly qualified to serve as an expert witness
for how to teach special needs students and how to evaluate special education
instructors.

31

D.

The Reliability of the Opinions

The Court also finds Delvin-Brown’s opinions to be largely reliable. Her
criticisms of the negative ratings given to Plaintiff are not speculative, for they are
based on internal inconsistencies in how the Mason Elementary School
administrators assessed the teacher’s strengths and weaknesses, testimony of
what was actually occurring in Plaintiff’s classroom during the observations,
testimony from the administrators, and documents in the record. Certainly DelvinBrown may not testify, as though she were an eyewitness with first-hand
knowledge, that Plaintiff was or was not doing some specific thing during the
formal observations. However, if the proposed expert is provided with evidence
for what Plaintiff was doing, she may testify as to whether that behavior was
appropriate in the context of Plaintiff’s class. Delvin-Brown would, thus, also be
allowed to testify concerning whether measuring student progress in IEPs is a
proper way to gauge a teacher’s performance, whether the evidence indicates
Plaintiff’s students did make such progress, and what this progress would
suggest about Plaintiff. Such commentary on the significance of evidence is not
speculation, but rather the hallmark of expert testimony.
Certain minor points in Delvin-Brown’s opinions are speculative. The
expert report concludes by noting that Plaintiff “appears … to be able to manage
staff who worked under her supervision and who at least in some cases lacked a

32

high degree of knowledge and training in the area of young children with…”
special needs. (Amended Expert Report, p. 15). It goes on to state that Plaintiff
“appeared to understand her primary duties to her students and their health and
safety.” (Id.) The Court is unclear upon what precisely Delvin-Brown is basing
these conclusions concerning Plaintiff’s management abilities, the limited
knowledge and training of her staff, and her understanding of her duties. Such
broad,

conclusory

statements

are

excluded,

subject

to

Delvin-Brown’s

establishing a more concrete foundation for them while testifying at trial.
Defendants also argue, unconvincingly, that Delvin-Brown’s opinions are
unreliable because she has not disclosed what, if any, scientific method she used
to reach them. Even if no scientific testing or methodology is involved, expert
testimony may be reliable if it is based on education, experience, or training. See
Frazier, 387 F.3d at 1261–63. If a witness primarily bases her opinions on her
experience, then she must “explain how that experience leads to the conclusion
reached, why that experience is a sufficient basis for the opinion, and how that
experience is reliably applied to the facts.” Id. at 1261 (quoting the advisory
committee’s notes to Fed. R. Evid. 702) (emphasis omitted). The standard for
judging the reliability of a witness’s opinion is necessarily flexible, involving
factors which may vary from case to case. Id. at 1261–62.

33

Although Delvin-Brown could have more clearly demonstrated how her
experience, training, and education formed her opinions, the Court is persuaded
that a preponderance of the evidence supports the reliability of her conclusions.
She claims to have experience in the areas in which she has opined. According
to Delvin-Brown’s declaration, her opinions in this case “are similar in content,
approach and scope with opinions or training or consulting that I might give to
school districts or in instruction when teaching classes or workshops.” (DelvinBrown Declar., ¶3). Her CV describes an impressive history of working in general
and special education, developing IEPs for special needs students, employing
tools for evaluating teachers, and ensuring compliance with state and federal
laws and regulations. Her report makes clear that, in arriving at her conclusions,
she has applied this experience and training, along with a variety of resources
from the special education arena, to the facts of this case. If Defendants wished
to clarify certain details for how Delvin-Brown engaged in this process, they
should have deposed her.
E.

The Opinion’s Usefulness to the Jury

Contrary to Defendants’ assertion, Delvin-Brown’s testimony would assist
the jury in trying the facts of this case. Defendants are correct that what is
ultimately at issue is whether they intended to retaliate against Plaintiff, not the
wisdom of the evaluations, observations, and decision not to renew her contract.

34

However, this fact does not render irrelevant Delvin-Brown’s opinions on how the
evaluation tools were implemented, how the Defendants may have ignored the
clear guidelines of the School District’s evaluation policy, and whether Plaintiff’s
students showed progress in their IEPs. A jury’s determining that these things did
occur would not be sufficient to render the Defendants liable for retaliation, but it
would certainly buttress Plaintiff’s argument that Defendants created the canard
of her incompetence to cover their retaliation. Furthermore, these topics do not
come within the average layperson’s knowledge. As for Defendants’ concern that
the jury might be misled into thinking that Plaintiff has proven her case simply by
convincing the jury that Delvin-Brown’s conclusions are true, the jury’s own
common sense and clear instruction from the Court will dispel this threat.
A minor conclusion reached by Delvin-Brown is irrelevant. She maintains
that the GTOI observation instrument was a poor means of measuring a
teacher’s performance, particularly one in special education. Even if this is true,
the Court fails to see how this fact would make it more or less likely that
Defendants retaliated against Plaintiff. The administrators at Mason Elementary
School used the GTOI tool to assess Plaintiff’s performance in the 2009–2010
school year, well before they allegedly began their retaliation. (See 4/14/10
Observation, Ex. 3 to depositions, Doc. 42-1). They clearly did not begin using
the instrument as a means to find an excuse for punishing Plaintiff. The key issue

35

is how they used the tool, not whether they did at all. Thus, criticizing the GTOI’s
effectiveness is likely to mislead the jury, and Delvin-Brown’s opinion in this
regard must be excluded. There is plenty of other evidence by which Plaintiff can
validate her teaching performance.
In sum, Defendants’ Daubert motion is granted in part and denied in part.
The Court excludes Delvin-Brown’s opinions concerning Plaintiff’s management
abilities, the limited knowledge and training of her staff, her understanding of her
duties, and the ineffectiveness of the GTOI as a tool.
III.

Conclusion
For the reasons stated above, Defendants’ Daubert Motion to Exclude the

Testimony of Angela Delvin-Brown (Doc. 26) is granted in part and denied in
part. Their Motion for Summary Judgment (Doc. 27) is also granted in part and
denied in part. Summary judgment is granted on Plaintiff’s official-capacity claims
against Principal Davis and Chappuis, her claim for intentional infliction of
emotional distress, and all of her claims against Superintendent Cason. This
case will be set for trial on the remaining claims.
SO ORDERED, this the 6th day of November, 2014.

s/ Hugh Lawson_______________
HUGH LAWSON, SENIOR JUDGE
scr

36