Dove v. Flagler County School Board

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JAWANDA DOVE,

Plaintiff,

vs. Case No. 3:20-cv-547-MMH-MCR

FLAGLER COUNTY SCHOOL

BOARD,

Defendant.

/

O R D E R

THIS CAUSE is before the Court on Defendant’s Motion for Summary

Judgment and Supporting Memorandum of Law (Doc. 37; Motion), filed March

28, 2022. Plaintiff Jawanda Dove filed a response in opposition to the Motion.

See Plaintiff’s Amended Response to Defendant[’s] Motion for Summary

Judgement [sic] and Supporting Memorandum of Law (Doc. 52; Response), filed

May 11, 2022.1 Defendant Flagler County School Board filed a reply. See

1 After the Court twice granted Dove additional time to respond to the Motion, see

Order (Doc. 44) at 1; Endorsed Order (Doc. 46), Dove’s counsel filed a response on April 29,

2022. See Plaintiff[’s] Response to Defendant[’s] Motion for Summary Judgement [sic] and

Supporting Memorandum of Law (Doc. 47; Original Response). On May 3, 2022, the Court

struck the Original Response for its “particularly egregious” failure to comply with the Local

Rules of the United States District Court for the Middle District of Florida (Local Rule(s)). See

Order (Doc. 49) at 1–2. The Court required Dove’s counsel to file a “notice with the Court

certifying that he has carefully read, and now understands the requirements of, the Court’s

Local Rules.” Id. at 2. The Court also gave Dove’s counsel “up to and including May 9, 2022,

to file an amended response which complies with the Local Rules of this Court.” Id. Instead

of complying with the May 9 deadline, Dove’s counsel filed the Response on May 11, 2022.

Defendant’s Reply to Plaintiff’s Amended Response to Defendant’s Motion for

Summary Judgment and Supporting Memorandum of Law (Doc. 54; Reply),

filed May 25, 2022. Accordingly, this matter is ripe for review.

I. Background2

The Flagler County School Board (School Board) has employed Dove, who

is African American, as an instructional educator since 2006. See Affidavit in

Support of Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment

and Supporting Memorandum of Law (Doc. 48; Dove Aff.) at 2, filed April 29,

2022. Between June 8, 2018, and August 27, 2018, Dove applied for three

leadership positions but was not selected. See id. From May 30, 2019, through

September 12, 2019, Dove applied for seven other leadership positions but also

was not selected. See id. Dove maintains that the School Board chose “less

qualified Caucasian candidates” for all of the positions. Id.

The School Board has a process for filling employment vacancies. Motion

at 21–26, Ex. A: Affidavit in Support of Defendant’s Motion for Summary

Judgment and Supporting Memorandum of Law (Johnson Aff.) at 22. For each

Dove’s counsel never asked the Court for another extension of the deadline to respond and

never requested that the Court accept the Response as timely filed. Counsel’s disregard for

the Court’s deadlines and rules is unacceptable. Nevertheless, because the Court prefers to

resolve matters on the merits after hearing from all parties, the Court will consider the

Response. Counsel is cautioned that the Court expects compliance with all future deadlines.

2 For the purposes of resolving the Motion, the Court views all disputed facts and

reasonable inferences in the light most favorable to Dove. However, the Court notes that these

facts may differ from those ultimately proved at trial. See Lee v. Ferraro, 284 F.3d 1188, 1190

(11th Cir. 2002).

employment vacancy, the School Board forms a hiring committee that

interviews “all qualified applicants.” Id. at 22–23. The School Board hires the

candidate “recommended by the committee as the best qualified.” Id. at 23.

According to the School Board’s Chief Human Resources Officer Jewel Johnson,

the School Board “abides by equal employment opportunity procedures for its

personnel” and has a written policy forbidding discrimination in its employment

practices. Id.; Motion at 27–28, Ex. B. Johnson further notes that the School

Board employs African American individuals in leadership positions “similar or

more prestigious than the subject positions that Ms. Dove applied for.” Johnson

Aff. at 24. With respect to seven of the positions at issue, Johnson maintains

that the hiring committee did not recommend Dove because “Dove was not the

best qualified candidate out of all applicants.” Id. at 23. For an eighth position,

Curriculum Specialist ID: 190906001, Johnson avers that Dove did not meet

the minimum qualifications for the position because Dove formatted her

application in such a way that it did not show certain credentials required for

the position. See id. Dove asserts that Johnson’s statement about the

Curriculum Specialist application is “not true.” Dove Aff. at 3.

Dove filed a charge of discrimination with the Equal Employment

Opportunity Commission (EEOC) on December 18, 2019, in which she asserted

that the School Board denied her “promotional opportunities because of [her]

race and color and in retaliation for filing a previous charge with the EEOC in

2014.” Motion at 30, Ex. C: Charge of Discrimination (EEOC Charge). She

initiated this action on June 30, 2020, by filing her Complaint and Demand for

Jury Trial (Doc. 1). With leave of Court, Dove filed the currently operative

complaint on July 29, 2022. See Plaintiff’s Second Amended Complaint for

Damages (Doc. 9; Complaint). In the Complaint, Dove alleges that the School

Board discriminated against her because of her race and national origin in

violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e

et seq., and the Florida Civil Rights Act of 1992 (FCRA), Fla. Stat. § 760.01 et

seq. See Complaint ¶ 11. Specifically, in Count I, Dove asserts that the School

Board violated Title VII by failing to promote her on eighteen occasions because

of discrimination. Id. ¶¶ 17, 20–22. And, in Count II, Dove alleges that the

School Board “willfully, knowingly and intentionally violated the State’s explicit

Equal Opportunity Affirmative Action Law,” Fla. Stat. § 110.112, and the

Florida Educational Equity Act (FEEA), id. § 1000.05. Complaint ¶¶ 25–26.

Dove also maintains that the School Board “selected and promoted four (4)

Caucasian colleagues to Assistant Principal positions,” instead of selecting Dove

who “had more years of experience and more educational accomplishments.” Id.

¶ 27.

II. Legal Standard

Under Rule 56 of the Federal Rules of Civil Procedure (Rule(s)), “[t]he

court shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Rule 56(a). The record to be considered on a motion for

summary judgment may include “depositions, documents, electronically stored

information, affidavits or declarations, stipulations (including those made for

purposes of the motion only), admissions, interrogatory answers, or other

materials.” Rule 56(c)(1)(A).3 An issue is genuine when the evidence is such

that a reasonable jury could return a verdict in favor of the nonmovant. See

Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quoting

Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 919 (11th Cir. 1993)). “[A]

mere scintilla of evidence in support of the non-moving party’s position is

insufficient to defeat a motion for summary judgment.” Kesinger ex rel. Est. of

3 Rule 56 was revised in 2010 “to improve the procedures for presenting and deciding

summary-judgment motions.” Rule 56 Advisory Committee’s Note 2010 Amends.

The standard for granting summary judgment remains unchanged. The

language of subdivision (a) continues to require that there be no genuine

dispute as to any material fact and that the movant be entitled to judgment as

a matter of law. The amendments will not affect continuing development of

the decisional law construing and applying these phrases.

Id. “[A]lthough the interpretations in the advisory committee[’s] notes are not binding, they

are highly persuasive.” Campbell v. Shinseki, 546 F. App’x 874, 879 n.3 (11th Cir. 2013).

Thus, case law construing the former Rule 56 standard of review remains viable and is

applicable here.

In citing to Campbell, the Court notes that it does not rely on unpublished opinions as

binding precedent; however, they may be cited in this Order when the Court finds them

persuasive on a particular point. See McNamara v. GEICO, 30 F.4th 1055, 1060–61 (11th Cir.

2022); see generally Fed. R. App. P. 32.1; 11th Cir. R. 36–2 (“Unpublished opinions are not

considered binding precedent, but they may be cited as persuasive authority.”).

Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004) (citing Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

The party seeking summary judgment bears the initial burden of

demonstrating to the court, by reference to the record, that there are no genuine

issues of material fact to be determined at trial. See Clark v. Coats & Clark,

Inc., 929 F.2d 604, 608 (11th Cir. 1991). “When a moving party has discharged

its burden, the non-moving party must then go beyond the pleadings, and by its

own affidavits, or by depositions, answers to interrogatories, and admissions on

file, designate specific facts showing that there is a genuine issue for trial.”

Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593–94 (11th Cir. 1995)

(internal citations and quotation marks omitted). Substantive law determines

the materiality of facts, and “[o]nly disputes over facts that might affect the

outcome of the suit under the governing law will properly preclude the entry of

summary judgment.” Anderson, 477 U.S. at 248; see also McCormick v. City of

Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (“The mere existence of

some factual dispute will not defeat summary judgment unless the factual

dispute is material to an issue affecting the outcome of the case.”). In

determining whether summary judgment is appropriate, a court “must view all

evidence and make all reasonable inferences in favor of the party opposing

summary judgment.” Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)

(citing Dibrell Bros. Int’l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571,

1578 (11th Cir. 1994)).

III. Discussion4

As an initial matter, the School Board asserts that only eight employment

decisions are properly at issue because Dove did not timely challenge the other

employment decisions by filing a charge with the EEOC within three hundred

days of the adverse actions. See Motion at 5 & n.1. Dove does not respond to

this argument. In resolving the Motion, the Court will consider only the eight

employment decisions made within the three hundred days before Dove filed

her EEOC Charge. See 42 U.S.C. § 2000e-5(e)(1).

4 Dove asserts parallel race discrimination claims under Title VII and the FCRA. See

Complaint ¶ 11. “Because the FCRA is modeled after Title VII, and claims brought under it

are analyzed under the same framework, the state-law claims do not need separate discussion

and their outcome is the same as the federal ones.” Alvarez v. Royal Atl. Devs., Inc., 610 F.3d

1253, 1271 (11th Cir. 2010) (citation omitted); see Gray v. City of Jacksonville, 492 F. App’x 1,

3 (11th Cir. 2012). Similarly, Dove alleges that the School Board violated the FEEA. See

Complaint ¶ 26. A claim of employment discrimination under the FEEA is likely subject to

the same Title VII analysis. See Ren v. Univ. of Cent. Fla. Bd. of Trustees, 390 F. Supp. 2d

1223, 1235–36 (M.D. Fla. 2005), aff’d, 179 F. App’x 680 (11th Cir. 2006). Finally, Dove asserts

that the School Board violated section 110.112 of the Florida Statutes, by selecting mostly

Caucasian candidates. See Complaint ¶ 25. Section 110.112 provides that “[a]ny individual

claiming to be aggrieved by an unlawful employment practice may file a complaint” as

provided by the FCRA. Fla. Stat. § 110.112(5)–(6). Therefore, to the extent that Dove is

bringing a claim under section 110.112, that claim is not separate from the FCRA claim. In

sum, the same analysis governs all of Dove’s discrimination claims.

In citing to Ren, the Court notes that, although decisions of other district courts are

not binding, they may be cited as persuasive authority. See Stone v. First Union Corp., 371

F.3d 1305, 1310 (11th Cir. 2004) (noting that, “[a]lthough a district court would not be bound

to follow any other district court’s determination, the decision would have significant

persuasive effects.”).

Title VII provides “that it is unlawful for an employer ‘to discriminate

against any individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s race, color, religion, sex,

or national origin.’” Holifield v. Reno, 115 F.3d 1555, 1561 (11th Cir. 1997)

(quoting 42 U.S.C. §§ 2000e-2(a)(1)), abrogated on other grounds by Lewis v.

City of Union City, 918 F.3d 1213, 1217 (11th Cir. 2019) (en banc). A plaintiff

may establish a Title VII discrimination claim through the introduction of direct

or circumstantial evidence or statistical proof of discrimination. Lee v. U.S.

Steel Corp., 450 F. App’x 834, 839 (11th Cir. 2012) (citing Alvarez v. Royal Atl.

Devs., Inc., 610 F.3d 1253, 1264 (11th Cir. 2010)). Where, as here, the plaintiff

relies on circumstantial evidence of discrimination,5 the Court applies the

burden-shifting framework articulated in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). Alvarez, 610 F.3d at 1264. When relying on the McDonnell

Douglas framework to support a claim of discrimination, the plaintiff bears the

initial burden of establishing a prima facie case of discrimination. Id. If the

plaintiff presents a prima facie case, that evidence “creates a presumption that

the employer unlawfully discriminated against the employee.” Tex. Dep’t of

Cmty. Affs. v. Burdine, 450 U.S. 248, 254 (1981). The burden of production then

shifts to the defendant to offer a legitimate, nondiscriminatory reason for the

5 Dove concedes that she has no direct evidence of discrimination. See Response at 2.

adverse employment action. Id. If the defendant meets this burden of

production, the burden shifts back to the plaintiff to show that the stated reason

is a mere pretext for unlawful discrimination and was not the “true reason for

the employment decision.” Id. at 256.

A. Prima Facie Case

Both parties assert that Dove must show the following elements to

establish a prima facie case: “(1) she is a member of a protected class; (2) she

applied for and was qualified for an available position; (3) she was rejected; and

(4) Defendant filled the position with a person outside Plaintiff’s protected

class.” Motion at 9 (citing Childress v. Caterpillar Logistics Servs., Inc., 369 F.

App’x 95, 96 (11th Cir. 2010) (per curiam)); Response at 2 (citing Childress, 369

F. App’x at 96); see E.E.O.C. v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1273

(11th Cir. 2002) (per curiam). The School Board concedes that Dove can meet

the first and third elements for all of the contested positions. See Motion at 10.

The School Board also acknowledges that Dove can establish the second

element for seven of the eight positions because she applied for them and was

qualified. See id. While the School Board argues that Dove was not qualified

for the eighth position, ID: 190906001, because her application did not list a key

credential, see id. at 6 n.2, 10; Johnson Aff. at 23, Dove disputes this contention,

see Dove Aff. at 3. Indeed, there is a genuine dispute of fact about whether

Dove’s application showed this credential, and neither party has placed the

application itself into the record. Therefore, viewing all disputed facts in favor

of Dove, the Court finds that Dove has met the second element as to all of the

positions.

As to the fourth element, the School Board contends that Dove cannot

satisfy her burden because the School Board “has hired and promoted many

other applicants of the same protected class to fill similar and also more

prestigious positions.” Motion at 10. This argument suggests a fundamental

misunderstanding of plaintiff’s burden. Even under the School Board’s own

recitation of the fourth element, the relevant positions are the ones to which

Dove applied. See id. at 9 (“Defendant filled the position with a person outside

Plaintiff’s protected class.” (emphasis added)); Joe’s Stone Crabs, 296 F.3d at

1273 (listing the fourth element as “the position [to which the plaintiff applied]

remained open or was filled by another person outside of her protected class”).

To establish a prima facie case, Dove does not have to show that the

decisionmaker at the School Board has discriminated in every hiring decision

or that no other individual in her protected class has achieved success.

In arguing that Dove fails to satisfy the fourth element of her prima facie

case, the School Board cites Kennebrew v. Cobb County School District, No.

115CV02495RWSCMS, 2017 WL 4334244 (N.D. Ga. May 22, 2017), report and

recommendation adopted, No. 1:15-CV-2495-RWS, 2017 WL 4456889 (N.D. Ga.

June 28, 2017). However, that case is distinguishable in a significant respect.

In Kennebrew, the plaintiff applied for a special education teaching position.

Id. at *1. At the time, the defendant had five open special education positions

but did not select the plaintiff to fill any of them. See id. However, “[m]ost of

the candidates that Defendant [did hire] to fill the positions Plaintiff applied for

were in Plaintiff’s same protected classes.” Kennebrew, 2017 WL 4456889, at

*1. Based on this fact, the district court found that the plaintiff could not

establish a prima facie case of discrimination for any of the five openings. See

id. Although the plaintiff urged the court to view each of the five hiring

decisions separately, the court noted that “[t]he five positions were filled around

the same time and as part of the same decision-making process.” See id. Such

does not appear to be the case here. Notably, the School Board has provided no

information about when and how the various hiring decisions for the positions

at issue were made. Nor does the School Board assert that the positions “were

filled around the same time and as part of the same decision-making process.”

Id.; see also Dove Aff. at 4 (asserting that the positions are not “similarly

situated”). Thus, the Court declines to extend the reasoning of Kennebrew to

the situation here. See Saweress v. Ivey, 354 F. Supp. 3d 1288, 1305 (M.D. Fla.

2019) (rejecting a similar argument based on Kennebrew).

Dove has identified several Caucasian individuals who were selected for

the positions to which she applied. See Dove Aff. at 5. Moreover, in Defendant’s

Answer and Affirmative Defenses to Plaintiff’s Second Amended Complaint for

Damages (Doc. 10; Answer), filed August 18, 2020, the School Board admits that

it hired Caucasian individuals to fill at least three of the assistant principal

positions to which Dove applied. See id. ¶ 27; Complaint ¶ 27. As a result, the

Court finds that Dove has established a prima facie case.

B. Proffered Nondiscriminatory Reason

Because Dove has established a prima facie case, the burden of production

shifts to the School Board to offer a legitimate, nondiscriminatory reason for its

decisions. See Burdine, 450 U.S. at 254. “To accomplish this, the defendant

must clearly set forth, through the introduction of admissible evidence, the

reasons for the plaintiff’s rejection.” Id. at 255 & n.9. A defendant may present

objective or subjective reasons. See Chapman v. AI Transp., 229 F.3d 1012,

1028 (11th Cir. 2000) (en banc). The Eleventh Circuit has explained that “‘the

defendant’s explanation of its legitimate reasons must be clear and reasonably

specific’ so that ‘the plaintiff be afforded a full and fair opportunity to

demonstrate pretext.’” Id. at 1034 (quoting Burdine, 450 U.S. at 258). “A

subjective reason is a legally sufficient, legitimate, nondiscriminatory reason if

the defendant articulates a clear and reasonably specific factual basis upon

which it based its subjective opinion.” Id.

Here, the School Board’s asserted nondiscriminatory reason is simply a

conclusory statement by Johnson that the hiring committee found that Dove

“was not the best qualified candidate out of all applicants for the remaining

seven applied-for positions at issue.” Johnson Aff. at 23. This explanation is

wholly insufficient to meet the School Board’s burden of production. See Steger

v. Gen. Elec. Co., 318 F.3d 1066, 1076 (11th Cir. 2003) (“A defendant may not

merely state that the employment decision was based on the hiring of the ‘best

qualified’ applicant, but must articulate specific reasons for that applicant’s

qualifications . . . .”); Increase Minority Participation by Affirmative Change

Today of Nw. Fla., Inc. (IMPACT) v. Firestone, 893 F.2d 1189, 1194 (11th Cir.

1990) (“A mere statement that the employer hired the best qualified person

leaves no opportunity for the employee to rebut the given reason as a pretext .

. . .”). The School Board has not provided “a clear and reasonably specific factual

basis upon which it based its subjective opinion” that Dove was less qualified

overall than the selected candidates. Chapman, 229 F.3d at 1034. Although

counsel for the School Board insinuates that Dove did not perform well in her

interviews, see Reply at 5, the School Board has not pointed to admissible

evidence to support that suggestion. Because the School Board has not met its

burden of production, Dove’s prima facie case stands unrebutted. See Joe’s

Stone Crabs, 296 F.3d at 1276. Therefore, the School Board’s Motion is due to

be denied.

Accordingly, it is

ORDERED:

Defendant’s Motion for Summary Judgment and _ Supporting

Memorandum of Law (Doc. 37) is DENIED.

DONE AND ORDERED in Jacksonville, Florida, on November 14, 2022.

MARCIA MORALES HOWARD

United States District Judge

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