The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
RHONDA PRYOR, )
)
Plaintiff, )
) NO. 3:23-cv-00532
v. )
) JUDGE RICHARDSON
WILLIAMSON COUNTY BOARD OF )
EDUCATION d/b/a Williamson County )
Schools, )
)
Defendant. )
MEMORANDUM OPINION AND ORDER
Pending before the Court1 is a Report and Recommendation (Doc. No. 48, “R&R”) of the
Magistrate Judge, wherein the Magistrate Judge recommends that this Court grant the motion for
summary judgment (Doc. No. 31, “Motion”) filed by Defendant and dismiss this action in its
entirety. Plaintiff filed objections to the R&R (Doc. No. 49, “Objections”),2 to which Defendant
filed a response (Doc. No. 51, “Response”) and Plaintiff then filed an opposition with further
objections (Doc. No. 52, “Opposition”).3
1 Herein, “the Court” refers to the undersigned District Judge, as opposed to the Magistrate Judge who
authored the R&R.
2 Under Fed. R. Civ. P. 72(b), any party has fourteen (14) days from receipt of the R&R in which to file
any written objections to the Recommendation with the District Court. For pro-se plaintiffs, like Plaintiff,
the Court is willing to extend this 14-day deadline by three days to allow time for filings to be transported
by mail. Ultimately, Plaintiff’s Objections were filed within 19 days of the R&R and are therefore not
timely. However, the Court is willing to consider these Objections, given Plaintiff’s pro-se status.
3 Plaintiff filed this Opposition 14 days after Defendant filed its Response. This document is not permitted
by the Federal Rules of Civil Procedure or this Court’s Local Rules. Given that Plaintiff is pro se, however,
the Court has reviewed the contents of the Opposition and has cited it in its analysis. The Court wishes to
state that it has done so merely to accommodate Plaintiff’s pro-se status. As is clear from this opinion, none
of the information contained within the Opposition changed the Court’s instant ruling, which overrules the
Objections, adopts the R&R, and dismisses Plaintiff’s action.
For the reasons stated herein, the Court overrules the Objections, adopts the findings of the
Magistrate Judge in the R&R, grants the Motion, and dismisses this action in its entirety.
BACKGROUND
This case involves Plaintiff’s claims under Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e et seq. (“Title VII”), and the Family and Medical Leave Act, 29 U.S.C. §§ 2601
et seq. (“FMLA”). Plaintiff alleges that her termination was an act of discrimination against her
on the basis of her race (black) and sex (female), as well as retaliation against her for exercising
her rights under the FMLA.
The factual background as set forth by the Magistrate Judge in the R&R is essentially
undisputed except where noted therein. As such, the Court adopts that factual background in its
entirety and includes it here for reference.
Except as noted herein, the events underlying this case are essentially
undisputed. Plaintiff began working as a school bus driver for the WCBOE in
March 2015. There is no evidence that she was disciplined prior to the events at
issue in this case. While transporting middle school students on the morning of
September 22, 2021, Plaintiff wrote the word COVID backwards on a whiteboard
and then directed a nearly 11 minute long speech or discourse toward the students
on a range of topics, including, but not limited to, what the word COVID means in
Hebrew and Latin when spelled backwards, the meaning of symbols, the internet,
communism, China, abortion, the increasing price of goods and the collapse of the
dollar, the status of the United States in the world, taxes, Amazon and Jeff Bezos,
the content of television news broadcasts, cancer, and cancer treatments. This
occurred over the PA microphone/speaker system on the bus and took place while
Plaintiff was driving the bus with one hand on the steering wheel and one hand on
the PA handset. While Plaintiff characterizes the incident as a discussion or an
interaction with the students and that she often had “discussions with her students”
during her six years as a bus driver, it is undisputed that the incident on September
22, 2021 (the “September 22 incident”), occurred. Both a transcript of the speech
and video tapes of that morning on the bus are part of the record. See Affidavit of
Brian Findlen (Docket Entry No. 34) at Exhibit Nos. 1 and 9; and Attachments to
Docket Entry No. 43 at Exhibit No. 16.
Parents thereafter began to complain to the school transportation
department about the September 22 incident. In response, Jeffrey Fuller (“Fuller”),
the Director of the WCBOE Transportation Department, reviewed the video and
decided to issue to Plaintiff a written reprimand, dated September 23, 2021, for
“inappropriate and unprofessional” actions due to “discussion and comments” that
“are not appropriate ones to have with students.” See Findlen Affidavit at Exhibit
3. Fuller consulted with Lindsey Quirk (“Quirk”), the WCBOE Assistant Director
of Employee Relations, in drafting the language of the written reprimand. Quick
had not viewed the video of the incident at the time but was told by Fuller that
Plaintiff had discussed COVID with students, which Quirk viewed as a
controversial topic at the time. Although Plaintiff refused to sign the written
reprimand, both Fullen and Quirk considered the matter closed and Plaintiff
resumed driving a bus without interruption or other disciplinary action.
At least one parent did not consider the matter closed, however, and that
parent continued complaining to Fuller. After the parent was permitted to view the
video of the incident, the parent e-mailed Quirk on October 1, 2021, to again
complain about the incident and about Plaintiff’s continued employment as a bus
driver. Quirk then viewed the video with Vickie Hall (“Hall”), the WCBOE
Assistant Superintendent of Human Resources and Findlen, an investigator and
manager in the Human Resources Department, and a formal investigation into the
incident was opened. Later that day, a Friday, Plaintiff was instructed by Fuller that
she would not be driving a bus the following Monday and that she was to report to
the Human Resources Department Monday morning.
On October 4, 2021, Plaintiff reported as directed. Findlen provided her
with a written suspension letter from Jason Golden (“Golden”), the WCBOE
Superintended [sic] of Schools, that suspended her without pay pending completion
of an investigation into allegations that she engaged in unprofessional and
inappropriate conduct. See Findlen Affidavit at Exhibit 4. Quirk was also at the
meeting, and it appears that Hall also was present. As she had done with the
reprimand letter, Plaintiff refused to sign the suspension letter. Findlen told Plaintiff
that he would be contacting her soon about a date and time for an investigative
interview. Although disputed by Defendant, Plaintiff asserts that, during the course
of this meeting, “she informed HR of her plan to go out of town [on October 4,
2021] to bring her sick and elderly parents back to Tennessee.” See Complaint at 9.
Findlen thereafter called Plaintiff at approximately 2:30 p.m. that afternoon,
leaving a voice message that her investigative interview was scheduled for the next
day at 2:30 p.m., and he also sent Plaintiff an e-mail at 4:33 p.m. with this same
information. Plaintiff received these communications and was aware of the
scheduled interview because she called and left a voice message with Findlen that
evening, informing him that she would not be attending the interview. The next
morning, Findlen called and spoke to Plaintiff about the scheduled interview, her
need to be at the interview, and that the investigation would proceed without her if
she did not attend. Plaintiff informed Findlen that she could not attend because she
was out of town. Plaintiff ultimately did not attend the interview on Tuesday,
October 5th, and the Human Resources investigation was concluded that day with
a written report. The report set out the following conclusion:
the topics of conversation were unprofessional, inappropriate and
reflected poorly on Williamson County School. The discussions had
political overtones, were graphic in nature and predicted morbid and
other negative outcomes in the future. Comments about vaccination
and COVID are incredibly sensitive in the current environment.
See Affidavit of Findlen at Exhibit 6. The report further concluded that Plaintiff
had driven the bus with only one hand during the “10-minute period” when she was
making her comments to the student, which was unreasonable and unsafe given the
need for safety while driving a loaded school bus. The report finally concluded that
Plaintiff was insubordinate:
for her refusal to attend an investigative interview on 10/05/21 to
facilitate the expeditious investigation of the alleged offenses.
Insubordination is further supported by her unwillingness to inform
the investigator of any other availability and her unwillingness to
communicate her availability.
Id. The report ultimately recommended a “termination from employment on the
grounds of unprofessional/inappropriate conduct, insubordination and unsafe
operation of her school bus.” Id. On October 19, 2021, Golden issued to Plaintiff a
written termination letter “to notify you of the termination of your at-will
employment with Williamson County Schools, effective immediately.” See
Affidavit of Findlen at Exhibit 7.
(Doc. No. 48 at 2–5) (footnotes omitted).
In her analysis, regarding Plaintiff’s claims pursuant to Title VII, the Magistrate Judge
concluded that Defendant’s Motion should be granted, and summary judgment entered in favor of
Defendant, on the grounds that Plaintiff had not set forth evidence sufficient to raise a genuine
issue of material fact on the issue of pretext, as required for a plaintiff to avoid summary judgment
at step three of the so-called McDonnell Douglas4 framework governing the summary-judgment
4 The Sixth Circuit has summarized the applicability and workings of the McDonnell Douglas
burden shifting framework as follows:
A plaintiff may show discrimination by direct evidence, or a plaintiff lacking direct
evidence of discrimination may succeed on a Title VII claim by presenting indirect
evidence under the framework first set forth in McDonnell Douglas Corp v. Green, 411
U.S. 792, 802–03, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973).
analysis of Title VII claims (like Plaintiff’s) that are not based on direct evidence.5 (Doc. No. 48
at 12). And regarding Plaintiff’s claims for retaliation in violation of the FMLA, the Magistrate
To succeed under the McDonnell Douglas framework, the plaintiff must first make
out a prima facie case of discrimination by a preponderance of the evidence. . . . Once the
plaintiff makes out a prima facie case, the burden shifts to the defendant “to articulate some
legitimate, nondiscriminatory reason for” the adverse employment action. Should the
defendant do so, the plaintiff then must prove by a preponderance of the evidence that the
stated reasons were a pretext for discrimination.
Redlin v. Grosse Pointe Pub. Sch. Sys., 921 F.3d 599, 606–07 (6th Cir. 2019) (citations omitted). Regarding
pretext (step three of McDonnell Douglas), the undersigned has previously explained that
[i]f the burden shifts back to the plaintiff to show that the reason offered by the
defendant is a pretext[, then] [t]his resulting burden is one of persuasion, and this burden
of persuasion (as to pretext) at this stage “merges with the ultimate burden of persuading
the court that she has been the victim of intentional discrimination.” Id. at 256. In other
words, once the burden has shifted back to the plaintiff, the plaintiff must show by a
preponderance of the evidence each of two components of pretext: that the defendant’s
reasons (i) were not its true reasons and (ii) were instead actually a pretext for
discrimination. Kirilenko-Ison v. Bd. of Educ. of Danville Indep. Sch., 974 F.3d 652, 661
(6th Cir. 2020). To defeat a summary judgment motion in such circumstances, the plaintiff
must produce sufficient evidence from which the jury could reasonably reject the
defendant’s explanation and infer that the defendant intentionally discriminated against
him. Braithwaite v. Tinken Co., 258 F.3d 488, 493 (6th Cir. 2001).
Jordan v. Mathews Nissan, Inc., 539 F. Supp. 3d 848, 864-66 (M.D. Tenn. 2021) (footnotes and
one citation omitted). As to how a plaintiff can show pretext, the Sixth Circuit has explained
(consistent with the Court’s observations below):
Plaintiffs typically show pretext in one of three ways: (1) that the proffered reasons
had no basis in fact, (2) that the proffered reasons did not actually motivate the employer's
action, or (3) that the proffered reasons were insufficient to motivate the employer's action.
But these are not the only ways that a plaintiff can establish pretext; these three categories
are simply a convenient way of marshaling evidence and focusing it on the ultimate
inquiry: did the employer fire the employee for the stated reason or not? So plaintiffs
remain free to pursue arguments outside these three categories. Even so, a plaintiff must
articulate some cognizable explanation of how the evidence she has put forth establishes
pretext.
Miles v. S. Cent. Hum. Res. Agency, Inc., 946 F.3d 883, 888 (6th Cir. 2020) (citations and internal quotation
marks omitted). The teachings of Miles are reflected in the discussion in the R&R regarding whether
Plaintiff had raised a genuine issue regarding pretext
5 The Magistrate Judge concluded that given the absence of a genuine issue of material fact on the issue of
pretext, it was unnecessary to decide if Plaintiff satisfied her prima facie case of discrimination (as required
for a plaintiff to avoid summary judgment at step one of McDonnell Douglas). (Doc. No. 48 at 12).
Judge concluded that Defendant’s Motion should be granted, and summary judgment entered in
favor of Defendant, on the grounds that no reasonable jury could find that Plaintiff suffered a
violation of her rights under the FMLA. (Doc. No. 48 at 27).
Specifically, regarding the claims of race and sex discrimination under Title VII, the
Magistrate Judge reasoned that even if Plaintiff were to satisfy her prima facie case of
discrimination, Plaintiff did not set forth evidence sufficient to raise a genuine issue of material
fact on the issue of pretext. That is, Plaintiff did not show the absence of a genuine factual basis
for Defendant’s stated rationale for Plaintiff’s termination, that Defendant’s proffered reasons did
not actually motivate the employer’s action, or that the proffered reasons were insufficient to
motivate the employer’s action. (Id. at 13-20). Further, Plaintiff did not articulate any cognizable
explanation of how the evidence presented showed pretext. (Id. at 20-21). Thus, the Magistrate
Judge concluded that no reasonable jury could find that Plaintiff was unlawfully terminated from
her employment because of her race or sex. As a result, the Magistrate Judge recommended
dismissal of these claims with prejudice.6
Regarding Plaintiff’s retaliation claim, Plaintiff asserted that she triggered FMLA
protections after informing Defendant she would be unavailable to attend an investigative
interview while traveling to “bring her sick [and] elderly parents back to Tennessee,” and that
Defendant, in violation of the FMLA, retaliated against her by holding the meeting in her absence
and using her absence as a reason to terminate her. (Doc. No. 48 at 26) (brackets added). Defendant
accepted for the purpose of its Motion that Plaintiff made this statement, but the Magistrate Judge
6 Like many judges, the Magistrate Judge here used the terminology of “dismiss[al]” in describing the effect
of the recommended grant of summary judgment, i.e., she referred to the grant of a motion for summary
judgment as effecting “dismissal with prejudice.” There is nothing wrong with this, as long as it is kept in
mind that the basis for the “dismissal” is summary judgment under Rule 56 and not dismissal under Rule
12 or Rule 41.
found the statement was so vague and generalized that it was not sufficient to put Defendant on
notice and, consequently, there was no basis for a claim of FMLA retaliation. Id. Therefore, the
Magistrate Judge recommended dismissal of this claim with prejudice.
LEGAL STANDARD
When a magistrate judge issues a report and recommendation regarding a dispositive
pretrial matter, the district court must review de novo any portion of the report and
recommendation to which a proper objection is made. Fed. R. Civ. P. 72(b)(3). The district judge
may accept, reject, or modify the recommended disposition, review further evidence, or return the
matter to the magistrate judge with instructions. Id. Fed. R. Civ. P. 72(b)(2) provides that a party
may file “specific written objections” to a report and recommendation, and Local Rule 72.02(a)
provides that such objections must be written and must state with particularity the specific portions
of the Magistrate Judge’s report or proposed findings or recommendations to which an objection
is made. “The filing of vague, general, or conclusory objections does not meet the requirement of
specific objections and is tantamount to a complete failure to object. Moreover, an objection that
does nothing more than state a disagreement with a magistrate’s suggested resolution, or simply
summarizes what has been presented before, is not an objection as that term is used in this
context.” Frias v. Frias, No. 2:18-cv-00076, 2019 WL 549506, at *2 (M.D. Tenn. Feb. 12, 2019)
(internal citations and quotation marks omitted).
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(3), the Court has reviewed
the R&R and the Objections (as well as the Opposition). Below, the Court conducts a de novo
analysis of the portions of the R&R challenged by the Objections.7
7 As indicated herein, the Objections must be (and have been) generously construed in Plaintiff’s favor in
order to be considered to have actually challenged any portion of the R&R. The Court also includes the
statements made by Plaintiff in her Opposition within the term “Objections.” The Court refers to
ANALYSIS
The R&R recommends that the Court grant Defendant’s Motion (meaning, as made clear
above, grant summary judgment as to all claims or, to put it differently, dismiss all claims with
prejudice). (Doc. No. 48 at 29). Via her Objections, Plaintiff makes repetitious, unsupported, and
irrelevant contentions about the facts surrounding her termination. (Doc. Nos. 49-50, 52).
Plaintiff’s only objections that could be construed as specific and directed at the R&R are
assertions (1) that a bus driver employed by Defendant with the surname Scherrer is an appropriate
comparator for the purposes of satisfying Plaintiff’s prima facie case of race and sex discrimination
under Title VII (Doc. No. 49 at 3-6), (2) that Plaintiff’s termination constituted FMLA retaliation
because her absence at her investigative interview was caused by activity that is protected under
the FMLA (Doc. No. 52 at 1-2), and (3) that her statements were adequate to put Defendant on
notice that she was exercising her FMLA rights. (Doc. No. 52 at 4-5).
Plaintiff’s first objection is directed at the Magistrate Judge’s finding that Plaintiff did not
establish Scherrer as an appropriate comparator. (Doc. No. 48 at 19-20). This objection fails
because the record indicates that Scherrer’s behavior is distinguishable from Plaintiff’s behavior.
This is fatal to the objection because “in the employment discrimination context . . . ‘similarity
between the compared employees must exist in all relevant aspects of their respective employment
circumstances.’” United States v. Green, 654 F.3d 637, 651 (6th Cir. 2011) (quoting Pierce v.
Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir.1994)). Plaintiff asserts that Scherrer
engaged in conversations with his students in a manner similar to the way that Plaintiff engaged
with her students and yet was not investigated or disciplined. (Doc. No. 49 at 4-5). As the
Magistrate Judge found, however, Scherrer’s behavior is distinguishable because Plaintiff’s
“Objections” specifically as the documents filed by Plaintiff objecting to the R&R, and refers to
“objections” specifically as the assertions Plaintiff makes within those documents.
behavior and discussion with her students involved a greater number of controversial topics and
there is no evidence that Scherrer’s behavior resulted in the same level or intensity of parent
complaints (Doc. No. 48 at 19). Furthermore, Scherrer was counseled about his behavior and,
unlike Plaintiff, accepted responsibility for his actions. Therefore the record indicates that Scherrer
is not an appropriate comparator. (Doc. No. 48 at 17-20).
Moreover, even if Plaintiff satisfied her prima facie case by showing that Scherrer is an
appropriate comparator and was treated more leniently than she was, Plaintiff’s objection fails
alternatively because Plaintiff has not produced evidence sufficient to raise a genuine issue of
material fact that Defendant’s proffered reasons for termination were pretextual. Once a plaintiff
establishes a prima facie case and the defendant then proffers a legitimate non-discriminatory
reason for a plaintiff’s termination, the plaintiff bears the burden of showing the defendant’s reason
was pretext and “not the real reason for its action . . . .” E.E.O.C. v. Ford Motor Co., 782 F.3d 753,
767 (6th Cir. 2015). As discussed in a footnote above, a plaintiff can show pretext in one of three
ways: “(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not
actually motivate the employer's action, or (3) that they were insufficient to motivate the
employer's action.” See Chen v. Dow Chemical Co., 580 F.3d 394, 400 (6th Cir. 2009). But here,
Defendant’s proffered reasons for termination have a basis in undisputed fact, and Plaintiff has not
proffered evidence beyond speculation or unsupported allegations to support a reasonable finding
of pretext, via one of the above-mentioned three theories or some other theory. (Doc. No. 48 at
20).8 Accordingly, Plaintiff’s objection fails because even if Plaintiff could establish her prima
8 Plaintiff asserts that Defendant “brought communism to Franklin, Tennessee.” (Doc. No. 51 at 5). Plaintiff
appears to argue that such action would be more “morbid and egregious” than her conduct on the bus during
the September 22 incident and, therefore, that would somehow support a finding of pretext. (Doc. No. 49
at 2). But the question here is not whether Defendant has ever done something worse than what Plaintiff
facie case (and thus survive step one of McDonnell Douglas), Plaintiff has not produced sufficient
evidence to raise a genuine issue of material fact as to whether Defendant’s proffered reasons for
termination were pretextual.
Plaintiff’s second objection concerns the Magistrate Judge’s finding that terminating
Plaintiff for (at least, in part) not attending the October 5th investigative interview did not
constitute retaliation for protected conduct under the FMLA. (Doc. No. 48 at 27). Plaintiff asserts
that the Magistrate Judge erred in finding that Findlen, an investigator and manager in the human
resources department, had an honest belief that Plaintiff did not make herself available for the
investigative interview (and further asserts that Findlen scheduled the interview at a time at which
he knew Plaintiff could not attend). (Doc. No. 52 at 1-4). Plaintiff attempts to introduce a
screenshot of a text showing that Findlen knew of her unavailability and an exhibit purportedly in
support of her assertion that Findlen had the technological capability to receive her texts. (Doc.
No. 52-1 at 5-6). But there simply is no evidence in the record that Findlen was aware of her
attempted contact. Plaintiff has not pointed to anything in the record demonstrating that Findlen
intentionally scheduled the meeting at a time when Plaintiff could not attend. It is undisputed that
Plaintiff did not appear for the investigative interview on October 5, 2021, and Plaintiff’s objection
accordingly fails. (Doc. No. 48 at 14-15).
Plaintiff’s third objection concerns the Magistrate Judge’s finding that her statements to
school officials were too vague to place Defendant on notice of her exercising her FMLA rights.
(Doc. No. 48 at 27). Ultimately, her objection fails because it merely expresses disagreement with
did during the incident in question; it is whether Plaintiff has raised a genuine issue as to whether
Defendant’s stated reason for Plaintiff’s termination was pretextual.
the Magistrate Judge’s findings.9 Plaintiff asserts that her statement that she needed to take care of
her sick and elderly parents was made to three human resource agents and was sufficient to give
notice to Defendant that she was invoking FMLA protections. (Doc. No. 52 at 4-5). The record
already reflects Plaintiff’s assertion (which is disputed by Defendant) that she made her statement
in the presence of three employees who worked in human resources or employee relations. (Doc.
No. 48 at 4). Although the Magistrate Judge acknowledged that an employee does not have to
expressly mention the FMLA to invoke its protections, she found that—even if Plaintiff had in fact
made such a statement—the statement was too general and vague to place Defendant on notice
that Plaintiff was invoking her FMLA rights. (Doc. No. 48 at 27-28). Plaintiff has not pointed to
anything in the record that would alter this factual determination. Instead, Plaintiff merely
disagrees with the Magistrate Judge’s finding without providing any substantive reason why this
Court should come to a different conclusion—a conclusion that the undersigned finds sound.
Plaintiff’s third objection accordingly fails.
CONCLUSION
For the reasons discussed herein, Plaintiff’s Objections are overruled, and the Court adopts
the Magistrate Judge’s R&R (Doc. No. 48). Accordingly, Defendant’s Motion (Doc. No. 31) is
GRANTED, and this action is DISMISSED WITH PREJUDICE in its entirety. The Clerk is
DIRECTED to enter judgment pursuant to Fed. R. Civ. P. 58 and close the file.
9 The Court notes that under Fed. R. Civ. P 72(b)(2) and Local Rule 72.02(a), this is not a technically valid
objection, because what it does is merely “state[ ] a disagreement with a magistrate’s suggested resolution”
rather specifically object to a portion of the R&R. Frias v. Frias, No. 2:18-cv-00076, 2019 WL 549506, at
*2 (M.D. Tenn. Feb. 12, 2019). Nonetheless, the Court analyzes this objection in order to explain its
reasoning in finding that Plaintiff’s assertions represent a mere disagreement with the Magistrate Judge’s
findings.
IT IS SO ORDERED.
ELI RICHARDSON
UNITED STATES DISTRICT JUDGE