Weatherington v. Dothan City Board of Education

IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

LATESHA WEATHERINGTON, )

)

Plaintiff, )

)

v. ) Case No. 1:19-cv-414-RAH-SMD

) (WO)

DOTHAN CITY BOARD OF )

EDUCATION, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Plaintiff LaTesha Weatherington (“Weatherington”) brings this employment

discrimination action against Defendant Dothan City Board of Education (the

“Board” or “DCS”). Before the Court is the Board’s Motion for Summary Judgment

(“Motion”). (Doc. 18.) The motion has been briefed and is ripe for review. For the

reasons stated more fully below, the motion is due to be granted.

II. FACTUAL BACKGROUND

Weatherington is presently employed as a school principal by DCS, for whom

she has worked continuously, albeit in various positions, since 2003. (Doc. 18-1, p.

49; Doc. 1, p. 4.) Weatherington, a black female, filed this suit after applying for,

and being subsequently rejected from, several job openings within the DCS school

system. She submits two explanations for the Board’s decision to hire other

candidates. The first is race discrimination, which she alleges pursuant to both 42

U.S.C. §1983 and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.

§ 2000e, et seq., and the second is retaliation, which she also alleges pursuant to

Title VII. (See Doc. 1.) Weatherington separately asserts that the Board awarded

higher salaries to two of her male comparators in violation of the Equal Pay Act, 29

U.S.C. § 206(d). (Id., p. 10.)

DCS offers a more innocent explanation for hiring other candidates.

According to several of the DCS personnel responsible for hiring, neither race nor

retaliation played a role in the Board’s review of applications, its interview process,

or its hiring decisions. Instead, DCS contends that, as to each of the vacancies

forming the basis of Weatherington’s suit, it hired the most qualified candidate. (See

Doc. 19; Doc. 18-2; Doc. 18-3; Doc. 18-6; Doc. 18-7.) In response to

Weatherington’s Equal Pay claim, DCS challenges Weatherington’s assertion that

she was equally situated to certain named male comparators, and highlights the

differences between the first-year probationary principal contract that she held, and

the three-year principal contract that her alleged male comparators held. (Doc. 19,

p. 50.) It insists Weatherington’s gender was not a consideration for determining

which contract she was awarded or her salary. (Doc. 18-5; Doc. 19, pp. 50-53.)

a. Weatherington’s Qualifications

To be sure, Weatherington is a well-qualified school administrator. She boasts

two bachelor’s degrees – one from Alabama State University and one from Troy

University in Dothan – and obtained her master’s degree in Education Leadership in

2009, as well as an Education Specialist degree in 2018 – both from Troy University

in Dothan. (Doc. 18-1, pp. 54-56.)

Weatherington’s history as a DCS employee has been long and largely

without incident. DCS first hired her in 2003 to be a teacher (and for a short time,

the program specialist) at PASS Academy, where she remained until 2012. (Id., pp.

13-14.) Weatherington went on to work in several administrative positions at Dothan

High School, where she spent one year as the ninth-grade coordinator and one year

as assistant principal. (Id., pp. 16, 20.) She also had a short tenure as principal of

Honeysuckle Middle School from October 2014 through December 2015 before the

superintendent removed her from the position. (Id., pp. 19-20.) She returned to

Dothan High as assistant principal in February 2016.1 (Id., pp. 25-26.)

Weatherington remains employed by DCS, and most recently stepped into the

position of principal at PASS Academy, for which she was awarded a three-year

principal contract in the summer of 2020. (Id., p. 49.)

1 Dothan High School became Dothan Preparatory Academy in the spring of 2019. Then-

Superintendent Dr. Edwards assigned Weatherington to an administrative position at the Dothan

Preparatory satellite campus in February 2020. (Doc. 18-1, pp. 47-48.)

Of course, Weatherington’s employment with DCS, though it has not lapsed,

has not been entirely without discord. This is largely because, in December 2015,

then-Superintendent Dr. Charles Ledbetter (“Ledbetter”) made the decision to

remove her from her position as principal of Honeysuckle Middle School. Because

this event is a focus of Weatherington’s claims, it is discussed in detail below.

b. Weatherington’s Transfer from Honeysuckle Middle School

Weatherington applied for and was interviewed to fill the vacant principal

position at Honeysuckle Middle School in the fall of 2014. (Doc. 18-1, pp. 24-25.)

The interviewing committee recommended Weatherington to the Board for hire, and

DCS subsequently issued her a principal contract. (Id.) Being that it was her first

principal contract, the contract was probationary, as is customary for all first-time

principals. (Doc. 18-5, p. 2.) Her first day on the job was in October 2014. (Doc. 18-

1, p. 25.)

In December 2015 – 15 months after her tenure at Honeysuckle began –

Ledbetter called Weatherington in to meet with him. (Doc. 18-1, pp. 27-28.) It was

at this meeting that Ledbetter informed Weatherington that he was removing her

from her position as Honeysuckle principal, and he handed her a letter with a notice

that she was being reassigned to PASS Academy. (Id., pp. 28-29.) According to

Weatherington, Ledbetter explained that he wanted to go in a different direction.

(Id.) This did not sit well with Weatherington, who apparently refused to sign the

transfer letter and left the meeting without saying anything further. (Id.)

After the meeting, Weatherington first contacted her representative at the

Alabama Education Association (“AEA”), Rhonda Hicks. (Id., pp. 29-30.) Next, she

called Franklin Jones, who was serving on the Board of Education at the time. (Id.,

pp. 29-30.) Weatherington did not lodge any formal complaints on her own behalf

with either Ledbetter or the Board concerning her transfer from Honeysuckle, nor

did she communicate about the transfer with anyone else other than her lawyer, Clint

Daughtrey, who the AEA had assigned to her. (Id., pp. 39-42.)

Weatherington’s displeasure with the transfer spurred Daughtrey to initiate a

series of conversations with DCS, all of which took place between December 2015

and February 2016.2 (Id., pp. 35-36.) During this time, Weatherington remained on

leave, and did not report to work at Honeysuckle or anywhere else. (Id., pp. 36-37.)

By February 2016, Daughtrey and DCS had negotiated a Settlement Agreement

(“Settlement Agreement”), (Doc. 18-8), under which Weatherington would request

a voluntary transfer to Dothan High as an assistant principal, and DCS would

continue paying Weatherington under her probationary principal contract through its

2 The record is conspicuously silent as to whom Daughtrey spoke with, the specifics of those

conversations, and namely, whether anything was said about discrimination against

Weatherington. However, DCS stresses it had no notice of Weatherington’s discrimination claims

prior to the filing of this lawsuit, (Doc. 19, pp. 9-10), and Weatherington offers no evidence to the

contrary.

end date in July 2016. (Doc. 18-1, pp. 35-36; Doc. 18-8, pp. 1-2.) By its terms, the

Settlement Agreement further specified that Weatherington would be “free to apply

for any and all positions posed as vacant by the Board,” and that the Settlement

Agreement itself could not “be held against her… in considering her application.”

(Doc. 18-8, p. 2.) In July 2016, Weatherington “revert[ed]” to an eleven-month

assistant principal contract. (Id.)

c. Vacancies for Which Weatherington was Nonselected

After her transfer from Honeysuckle and return to Dothan High,

Weatherington applied for six separate job openings in the DCS system.3 (See Doc.

1.) For each position made the basis of this suit, the Board made the final hiring

decisions based on recommendations submitted by the superintendent and relevant

personnel. The facts relating to each position, viewed in the light most favorable to

Weatherington, are explained in turn.

i. Supervisor of Exceptional Educational Services

In April 2016, Weatherington applied for the Supervisor of Exceptional

Educational Services vacancy. (Doc. 18-1, pp. 112-13.) The position was based in

the central office and entailed assisting the director of the special education

department, overseeing the staff in the department, and monitoring legal updates

relevant to educating students with disabilities. (Doc. 18-7, p. 1.) It was Carol

3 All the while, she remained employed as an assistant principal at Dothan High School.

Cunningham, a white female and the Director of Exceptional Student Services at the

time, who interviewed Weatherington for the position and recommended hiring a

different candidate, Alicia Hales, as the superintendent. (Id.; Doc. 18-1, pp. 117-18.)

As it relates to Weatherington’s qualifications for the position, Weatherington

points to her time as the designated “special ed administrator” at PASS Academy

and Dothan High School. (Doc. 18-1, p. 114.) By contrast, Hales, a white female,

already had direct involvement with the Exceptional Services department throughout

her time as a school psychometrist. (Doc. 18-7; see Doc. 18-11.) Then-

superintendent Ledbetter agreed with Cunningham’s assessment that Hales was

more qualified, and the Board hired Hales in May 2016 on his recommendation.

(Doc. 18-4, p. 3.)

ii. Cloverdale Elementary Principal

Todd Weeks was serving as the interim DCS superintendent in May 2017

when the Board was hiring for the vacant Cloverdale Elementary principal position.

(Doc. 18-1, pp. 64-65.) Weatherington applied for the position and was interviewed

by Weeks, a process that was unlike her other DCS interview experiences.4 (Id., p.

4 Regarding DCS’s interview practices, Weatherington said: “One – one time you have a

committee of five people. The next time you have one person. The next time you have two people.

One interview you get a list of questions. The next interview you don’t. I mean, it’s all over the

place….” (Doc. 18-1, pp. 167-68.) For example, DCS conducted interviews for certain positions

by committee, as it did with the Honeysuckle position. Others, including the Cloverdale position,

were conducted by only one person. (Id., p. 66.) Specifically, Weatherington noted DCS’s failures

to convene an interview committee and require candidate “rankings” for all positions. (Id.)

66.) Additionally, in her deposition, and as DCS points out in its Motion,

Weatherington took issue with the outgoing principal’s show of favoritism, which

she believed to have clouded DCS’s judgment in hiring for this position.5 (Doc. 18-

1, pp. 77-79; Doc. 19, p. 13.) Weeks ended up recommending Christy Martin, a

white female, to the Board for hire based on her history working at Cloverdale and

her proven track record as part of its administration. (Doc. 18-3, pp. 1-2.) The Board

adopted Weeks’ recommendation.

iii. Highlands Elementary Principal

Weatherington applied for the Highlands Elementary Principal position in

June 2018, but DCS did not select her for an interview. (Doc. 18-1, pp. 95, 98.)

Based on the affidavit of Dr. Phyllis Edwards (“Edwards”), who became

superintendent of DCS in February 2018, DCS assembled an interview committee

for this position, and the committee then ranked candidates based on their interview

performance. (Doc. 18-2, p. 2.) Though it is not entirely clear which applicants DCS

interviewed for the position, at least one black female, Erica Hall, did receive an

interview. (Doc. 18-1, p. 103; Doc. 18-3, p. 2.)

Weatherington believes that retaliation, in addition to racial discrimination, is

to blame for her nonselection based on her qualifications as compared to Hall, who

5 Weatherington testified that the outgoing principal had told several Cloverdale teachers that

“Christy [Martin] was going to get the job.” (Doc. 18-1, p. 78.)

Weatherington believes had less administrative experience. (Doc. 18-1, p. 103.) And

she once again questions the involvement of an outgoing principal, in this case, Vicki

Davis, though Edwards disputes this. (Id., p. 104.) Edwards recommended

Blakelynn Barker to the Board, and Barker was hired. (Doc. 18-2, pp. 2-3.) Barker,

a white female, had five years of experience as a school principal and positive

recommendations making her the most qualified applicant in Edwards’ and Weeks’

view. (Id.; Doc. 18-3, p. 2.) They maintain that neither race nor retaliatory motives

played a factor in this decision.

iv. Federal Programs Director

The next position for which Weatherington applied was the Federal Programs

Director – a position based in the DCS central office. (Doc. 18-1, pp. 126-27.) She

was given an interview, which was conducted on November 30, 2018 by a three-

member committee consisting of Lee Jacobs, a white female; Mike Manual, a white

male; and Scott Faulk, a black male. (Id., p. 130.) The committee asked each

candidate the same questions and, based on their answers, ranked them from best to

worst. (Id., p. 130; see Doc. 18-12.) Jacobs presented Chris Duke, the highest-

ranking candidate, to Edwards, who then recommended Duke to the Board for hire.

(See Doc. 18-6; Doc. 18-2, p. 3.) Of the seven interviewees, Weatherington ranked

last. (Doc. 18-12.)

Duke, a white male, had considerable experience developing and

implementing federally funded programs in his former role as a Career Tech Director

and “seemed to have a very professional manner in dealing with difficult situations.”

(Doc. 18-6, pp. 2, 6.) The candidate pool for this position was indeed competitive.

Weatherington herself concedes that candidate Donnie Chambers, who ranked

second, was “very bright” and had the “same qualifications” that she had, though

she could not speak to his performance in the interview. (Doc. 18-1, pp. 135-36.)

Moreover, Charles Corbitt – one of the other candidates who ranked above

Weatherington – was also black. (Doc. 19, pp. 16-17; Doc. 18-1, pp. 136-37.)

Weatherington also admits to helping another higher-ranked white candidate, though

she could not speak precisely to the disparity in their respective rankings. (Doc. 18-

1, pp. 136-37.)

v. Curriculum Director

Weatherington applied for the Curriculum Director vacancy in early 2019.

(Doc. 18-2, p. 3.) A committee, which consisted of Lee Jacobs, Jeff Hatfield, and

one other unknown person, selected and interviewed the top candidates from the

applicant pool. (Doc. 18-1, p. 146.) Edwards then personally interviewed and ranked

the top two candidates; Weatherington was not among them. (Id.; Doc. 18-2, p. 3.)

Ultimately, Dr. Edwards recommended Maria Johnson, a white female, to the Board

for hire, citing her extensive experience as a principal, relationship with school

administrators across the system, and curriculum and assessment background. (Doc.

18-2, pp. 3-4.) Weatherington, Edwards contends, lacked the relevant experience

and the requisite relationships with other administrators. (Id.)

When asked whether she is alleging to have been more qualified than Johnson,

Weatherington responded, simply, “No.” (Id., pp. 145-46.) She further confessed

that she did not know whether Jacobs, one of the relevant hiring personnel, was privy

to her transfer from Honeysuckle or subsequent Settlement Agreement with DCS.

(Id., p. 147.) For her part, Jacobs asserts she does not have any knowledge of the

“particulars” of the Settlement Agreement, nor had she been aware of any

discrimination claims by Weatherington prior to the filing of this lawsuit. (Doc. 18-

6, p. 3.)

vi. Girard Intermediate Principal

Most recently, in the summer of 2019, Weatherington applied to fill the

principal vacancy at Girard Intermediate School.6 (Doc. 18-1, p. 161.) For this

position, DCS again assembled a small committee, this time comprised of Maria

Johnson and Sue Clark, to select and interview applicants. (Doc. 18-2, p. 4.) The

committee then ranked interviewees, and Edwards recommended top performer,

6 This lawsuit was filed on June 13, 2019, meaning that this particular cause of action arose after

Weatherington filed her complaint. (See Doc. 1; Doc. 18-2, p. 161.)

Sara Bouchard, a white female she considered the most qualified applicant, to the

Board for hire. (Id.)

In explaining this decision, Edwards pointed to Bouchard’s background with

International Baccalaureate (“IB”) programs, which was an attractive resume line in

light of DCS’s plan to convert Girard from a middle school to an IB elementary

school. (Id.) She additionally noted Bouchard’s deep knowledge of budgets and

background in curriculum development, among others. (Id.) Meanwhile,

Weatherington charges that she, too, was well qualified for the post and had the

relevant experience and, “[again], a white female was hired for the job.” (Id., p. 165.)

d. Weatherington’s Salary

As noted above, when the Board hired Weatherington to fill the principal

position at Honeysuckle in 2014, it offered her a probationary principal contract.

(Doc. 18-1, pp. 186-87.) Her annual salary was set at $80,659.50, effective October

10, 2014 through June 30, 2016. (See Doc. 18-19.)

i. Types of Principal Contracts and Salary Considerations

DCS relies on Dennis Coe, its Chief Operating Officer, to explain the

particulars of its pay scale for principals and how it determines where an employee

falls on that scale. Alabama Code § 16-24B-3, Coe notes contextually, differentiates

between probationary principals and contract principals. (Doc. 19, pp. 21-22; Doc.

18-5.) Where probationary principals are those employed as a principal for the first

time, contract principals have already completed their probationary period and

therefore have already served as a probationary principal; thus, they are afforded

greater legal protections. See Ala. Code § 16-24B-3(a). It is at the discretion of the

employing board to determine whether a probationary period is appropriate, and it

may call for a probationary period to last for up to two full contract years. Id. Salary

amounts are commonly based upon a principal’s probationary status, and higher

salaries may be negotiated and awarded to principals – particularly contract

principals – based on prior experience and a history of success. (Doc. 18-5, p. 3.)

ii. Male Comparators

Weatherington identifies two male comparators as the basis for her Equal Pay

Act claims.

1. Jeffrey Torrence

DCS hired Jeffrey Torrence (“Torrence”) to be a principal under a

probationary contract for a two-year term beginning on February 11, 2014 and

ending on February 10, 2016. (See Doc. 18-13.) Under the probationary contract, his

annual salary was set at $80,251.86. (Id., p. 2.) After completing this probationary

period, Torrence became the principal of Honeysuckle Middle School (as

Weatherington’s replacement) in February 2014. (Doc. 18-5, p. 3.) At this point,

DCS offered him a three-year principal contract with an annual salary of $95,000.00.

(Id.; Doc. 18-14, p. 2.) And when the three-year contract ended on June 30, 2019,

DCS once again employed him under a three-year principal contract for which

Torrence negotiated a slightly higher annual salary of $95,220.00. (Doc. 18-15, p.

2.) Torrence remains employed by DCS, and his present contract is set to end on

June 30, 2022. (Id., p. 1.)

2. Darius McKay

Prior to his employment with DCS, Darius McKay (“McKay”) had six years

of experience as an assistant principal and two years of experience as a principal in

a different school system. (Doc. 18-5, p. 3.) He was hired by DCS as a probationary

principal to fill the vacancy at Girard Middle School (now Girard Intermediate) for

a period that would last only one year, from July 28, 2015 through June 30, 2016.

(See Doc. 18-16.) For this time, his salary was set at $78,164.47. (Id., p. 2.) In July

2016, DCS hired McKay to remain at Girard under a three-year principal contract at

a salary of $92,000.00, (Doc. 18-17, p. 2), and again in July 2019 at a salary of

$95,220.00 (Doc. 18-18, p. 2). His current contract will end on June 30, 2022. (Id.,

p. 1.)

III. PROCEDURAL HISTORY

a. Filing of EEOC Charge

On September 25, 2018, Weatherington filed a charge of discrimination with

the Equal Employment Opportunity Commission (“EEOC”). (See Doc. 18-10.) She

identified race, retaliation, sex, and gender as the bases of her charge and claimed it

was a continuing action with the latest act of discrimination occurring on June 30,

2018.7 (Id.) The charge also contains a summary of Weatherington’s complaints

about DCS’s allegedly discriminatory employment practices, including

compensating male employees more than female employees, failing to adopt and

implement standard hiring practices, retaliating against her due to her prior claims

of discrimination, and hiring less qualified white applicants over more qualified

black applicants. (Id.) No amendments were ever made to the charge.

b. The Present Action

Weatherington filed her Complaint, (Doc. 1), on June 13, 2019, and DCS filed

its Answer on July 18, 2019, (Doc. 6). In her Complaint, Weatherington includes

four counts. Counts One and Two address her race discrimination allegations as they

relate to DCS’s failure to hire or promote her on six separate positions, dating back

to 2016. Her claims in Count One proceed under Section 1983, and in Count Two,

under Title VII. Notably, Weatherington clarifies that, as it pertains to Count Two,

she bases her claims only on the following five positions: Supervisor of Exceptional

7 On her EEOC charge, Weatherington recounts only two positions for which DCS failed to hire

her, including the Highlands Elementary Principal and Cloverdale Elementary Principal positions.

(Doc. 18-10.) Instead of mentioning the other positions discussed in her Complaint with any

specificity, she vaguely references the “bias, discrimination, and favoritism” demonstrated by the

Board’s system-wide hiring practices. (Id.) The Court notes that this omission alone does not

preclude judicial review of factual allegations made in the Complaint; however, the Complaint is

“limited by the scope of the EEOC investigation that can reasonably be expected to grow out of

the charge of discrimination.” Kelly v. Dun & Bradstreet, Inc., 557 F. App’x 896, 899 (11th Cir.

2014).

Services, Cloverdale Elementary Principal, Highlands Elementary Principal,

Director of Federal Programs, and Girard Intermediate Principal. Count Three also

addresses Weatherington’s failure to hire/promote claims, which she attributes to

retaliation under Title VII. She alleges retaliation for only five of the six positions

discussed in the facts: Cloverdale Elementary Principal, Highlands Elementary

Principal, Director of Federal Programs, Curriculum Director, and Girard

Intermediate Principal. Count Four asserts a separate and distinct claim under the

Equal Pay Act,8 which she bases upon her salary as compared to two male principals

at DCS.

DCS filed its Motion along with a brief and evidentiary submission in support

of the Motion, (Doc. 18; Doc. 19), on July 13, 2020. Weatherington filed her

response brief in opposition to DCS’s Motion, (Doc. 26), on September 25, 2020.

DCS filed its reply brief, (Doc. 29), on October 12, 2020.

IV. JURISDICTION

8 Weatherington ostensibly makes a last-ditch attempt to assert an additional claim of gender

discrimination on a failure to hire or failure to promote basis on the last page of her brief opposing

summary judgment. (Doc. 26, p 23.) But apart from allegations of Equal Pay Act violations, the

Complaint makes no reference to gender discrimination with respect to DCS’s failure to hire

Weatherington into any of the vacancies discussed. Because such a claim cannot be properly

brought at the summary judgment stage, the Court refuses to address it now. See Gilmour v. Gates,

McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (“Liberal pleading does not require that,

at the summary judgment stage, defendants must infer all possible claims that could arise out of

facts set forth in the complaint.”).

Subject matter jurisdiction is conferred by 28 U.S.C. §§ 1331 as to

Weatherington’s federal causes of action. The parties do not contest personal

jurisdiction or venue, and there are adequate allegations to support both. See 28

U.S.C. § 1391.

V. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if

the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law.”

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A district court must view the

evidence, and draw all reasonable inferences therefrom, in the light most favorable

to the nonmoving party. See, e.g., Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820

(11th Cir. 2010); Bingham, Ltd. v. United States, 724 F.2d 921, 924 (11th Cir. 1984).

Just as importantly, a court cannot make decisions as to the merits of properly

disputed factual issues. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249

(1986); Ryder Int’l Corp. v. First Am. Nat’l Bank, 943 F.2d 1521, 1523 (11th Cir.

1991).

The party moving for summary judgment “always bears the initial

responsibility of informing the district court of the basis for the motion.” Celotex,

477 U.S. at 323 (1986); see, e.g., Weinberger v. Hynson, Westcott & Dunning, 412

U.S. 609, 622 n.18 (1973). A party asserting that a fact cannot be or is genuinely

disputed can support such a statement by citing to particular parts of materials in the

record, including depositions, documents, electronically stored information,

affidavits or declarations, stipulations (including those made for purposes of the

motion only), admissions, interrogatory answers, or other materials. Fed. R. Civ. P.

56(c)(1)(A); Celotex, 477 U.S. at 323, 325. Alternatively, the movant can do one of

two things. It can contend that the materials cited do not establish the absence or

presence of a genuine dispute. Fed. R. Civ. P. 56(c)(1)(B); Fuller v. SL Alabama,

LLC, 56 F. Supp. 3d 1232, 1236 (M.D. Ala. 2014). Or, if it will not bear the burden

of production at trial, it can assert, without citing the record, that the nonmoving

party “cannot produce admissible evidence to support” a material fact. Fed. R. Civ.

P. 56(c)(1)(B); see also Fed. R. Civ. P. 56 advisory committee’s note to 1963

amendment (“Subdivision (c)(1)(B) recognizes that a party need not always point to

specific record materials.... [A] party who does not have the trial burden of

production may rely on a showing that a party who does have the trial burden cannot

produce admissible evidence to carry its burden as to the fact.”).

If the movant meets its burden, the burden shifts to the nonmoving party to

establish—with evidence beyond the pleadings—that a genuine dispute material to

each of its claims for relief exists. See, e.g., Celotex Corp., 477 U.S. at 324;

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The

nonmoving party is required “to go beyond the pleadings” and to present competent

evidence designating “specific facts showing that there is a genuine issue for trial.”

Celotex, 477 U.S. at 324. Generally, “[t]he mere existence of a scintilla of evidence”

supporting the nonmoving party’s case is insufficient to defeat a motion for summary

judgment. Anderson, 477 U.S. at 252.

In applying Rule 56, a court must heed two definitions. Applicable substantive

law identifies those facts that are material and those that are irrelevant. Id. at 248.

As a matter of course, “[d]isputed facts that do not resolve or affect the outcome of

a suit will not properly preclude the entry of summary judgment.” Kingsley v.

Tellworks Commc'ns., LLC, No. 1:15-CV-4419-TWT-JSA, 2017 WL 2624555, at

*14 (N.D. Ga. May 24, 2017). Meanwhile, an issue is not genuine if it is unsupported

by evidence, or if it is created by evidence that is “merely colorable” or is “not

significantly probative.” Anderson, 77 U.S. at 250. Essentially, a genuine dispute of

material fact exists when the nonmoving party produces evidence allowing a

reasonable fact finder to return a verdict in its favor. See Waddell v. Valley Forge

Dental Assocs., Inc., 276 F.3d 1275, 1279 (11th Cir. 2001).

VI. DISCUSSION

a. Claims and Limitations Periods

Before addressing the merits of Weatherington’s claims, the Court must

address DCS’s preliminary contentions that one of Weatherington’s race

discrimination claims brought under Section 1983 is time-barred, and additionally

that four of the race discrimination and four of the retaliation claims brought under

Title VII should be dismissed for Weatherington’s failure to exhaust her

administrative remedies.

i. Weatherington’s Time-Barred Claim

“All constitutional claims brought under Section 1983 are tort actions, subject

to the statute of limitations governing personal injury actions in the state where the

Section 1983 action has been brought.” McNair v. Allen, 515 F.3d 1168, 1173 (11th

Cir. 2008); see 42 U.S.C. § 1988(a). In Alabama – the forum state in which

Weatherington has raised her claims – the governing limitations period is two years.

Ala. Code § 6-2-38(l); Lufkin v. McCallum, 956 F.2d 1104, 1106 n. 2 (11th Cir.

1992). Accordingly, she was required to bring her claims within two years from the

date the limitations period began to run.

The Eleventh Circuit has long held that “the statute of limitations does not

begin to run until the facts which would support a cause of action are apparent or

should be apparent to a person with a reasonably prudent regard for [their] rights.”

Mullinax v. McElhenney, 817 F.2d 711, 716 (11th Cir.1987). It bears iterating that

an alleged series of discrete decisions not to hire or promote do not constitute a

continuing violation for statute of limitations purposes in actions brought pursuant

to Section 1983. See, e.g., Smith v. Alabama Dep’t of Corr., 131 F. Supp. 2d 1318,

1321 (M.D. Ala. 2001); E.E.O.C. v. Joe's Stone Crabs, Inc., 296 F.3d 1265, 1272

(11th Cir. 2002) (holding that each instance of failing to hire is a discrete act that

cannot constitute a continuing violation). Thus, each instance where DCS failed to

hire Weatherington gave rise to a separate cause of action.

The two-year statute of limitations period bars the Section 1983 race

discrimination claims that Weatherington bases upon DCS’s failure to award the

position of Supervisor of Exceptional Services to her. Because DCS awarded the

position to Alicia Hales in May 2016, Weatherington should have filed suit prior to

the expiration of the limitations period in May 2018. She did not do so. Therefore,

DCS’s motion for summary judgment is due to be granted as to this time-barred

employment decision. Weatherington’s remaining Section 1983 claims are timely

and therefore are evaluated on the merits below.

ii. Failure to Exhaust Administrative Remedies

1. Timely EEOC Charge Requirement

DCS’s second preliminary contention is that Weatherington failed to exhaust

her administrative remedies as required by Title VII. More specifically, DCS claims

Weatherington failed to timely file EEOC charges with respect to the racially

discriminatory selection of the following positions: Supervisor of Exceptional

Services, Cloverdale Elementary Principal, Director of Federal Programs, and

Girard Intermediate Principal. (Doc. 19, pp. 27-28.) It further claims she failed to

timely file EEOC charges as to the retaliatory nonselection of her for the following

positions: Cloverdale Elementary Principal, Director of Federal Programs,

Curriculum Director, and Girard Intermediate Principal. (Id.) By process of

elimination, the only Title VII claims Weatherington has preserved, DCS argues, are

those that relate to the Highlands Elementary Principal position.

As a condition precedent to filing a Title VII suit in federal court, a plaintiff

must first exhaust her administrative remedies by filing a charge with the EEOC. See

Forehand v. Fla. State Hosp. at Chattahoochee, 89 F.3d 1562, 1567 (11th Cir.

1996); 42 U.S.C. § 2000e-5(e)(1). In this Circuit, specifically, a plaintiff is limited

to filing his or her charge within 180 days after the alleged unlawful employment

practice occurred, and failure to do so “generally results in a bar of the claims

contained in the untimely charge.” Id.; Reed v. Winn Dixie, Inc., 677 F. App’x 607,

610 (11th Cir. 2017) (citing Alexander v. Fulton Cty., Ga., 207 F.3d 1303, 1332

(11th Cir. 2000)).

Once a plaintiff has filed an EEOC charge, she must amend it to include any

new discrete acts of employment discrimination that occur. See Kelly v. Dun &

Bradstreet, Inc., 557 F. App’x 896, 899 (11th Cir. 2014). Where allegations of

employment discrimination have not been administratively considered, a judicial

finding of discriminatory conduct is not proper. Id. Failures to promote or hire are

discrete acts that must be amended into an existing charge, or filed as a new charge,

in order to be actionable. See Duble v. FedEx Ground Package Sys., Inc., 572 F.

App’x 889, 893 (11th Cir. 2014) (holding that after a new discrete act, plaintiff must

amend his EEOC charge for it to be actionable); Riccard v. Prudential Ins. Co., 307

F.3d 1277, 1291 (11th Cir. 2002)(citing E.E.O.C v. Joe’s Stone Crabs, Inc. for the

proposition that failure to hire incidents are discrete events that do not constitute a

continuing violation).

In the instant case, Weatherington did not file an EEOC charge until

September 25, 2018. (See Doc. 18-10.) By failing to file earlier, she failed to preserve

any Title VII claim that accrued prior to March 24, 2018. For ease of reference, each

of her Title VII claims accrued at the following times:

Supervisor of Exceptional Services April 2016

Cloverdale Elementary Principal July 2017

Highlands Elementary Principal September 2018

Federal Programs Director December 2018

Curriculum Director March 2019

Girard Intermediate Principal July 2019

By this measure, Weatherington did not comply with the 180-day deadline

applicable to either the Supervisor of Exceptional Services or Cloverdale Elementary

positions, which occurred more than 29 months and 14 months, respectively, before

she filed her EEOC charge. Likewise, she failed to amend her EEOC charge to

reflect the alleged discriminatory conduct that accrued subsequent to her initial

filing, namely that conduct related to the Federal Programs Director position,

Curriculum Director position, and Girard Intermediate Principal position, and she

further did not file any additional EEOC charges in her allotted 180-day timeframe.

Weatherington’s failure to exhaust provides an independently sufficient basis

to grant summary judgment in DCS’s favor on most of Weatherington’s Title VII

claims, the only exception being her race discrimination and retaliation claims linked

to the Highlands Elementary position. The Court will accordingly address claims

related to the Highlands Elementary position on the merits.

2. Continuing Violation Doctrine

Weatherington contends that the discrimination of which she complains is a

“continuing action” and therefore her failure to file an EEOC charge within 180 days

of each separate incident of alleged employment discrimination is legally excused.

To support this, she cites Anderson v. Embarq/Spring, 379 F. App’x 924, 926 (11th

Cir. 2010), in which the Eleventh Circuit explained that a plaintiff’s complaint is

“limited by the scope of the EEOC investigation which can reasonably be expected

to grow out of the charge of discrimination.” (Doc. 26, p. 13.) The Anderson court

continued, holding that new claims “are allowed if they amplify, clarify, or more

clearly focus the allegations of the EEOC complaint.” Id. (citations omitted).

Without applying any of the relevant facts to the stated law, Weatherington leaves

this Court to presume that her opposition to summary judgment on exhaustion

grounds turns on the continuing violation doctrine, which would not apply in the

instant case even if it had been correctly alleged.

When the continuing violation doctrine does apply, it allows an employee who

has filed a timely EEOC charge to bring claims for previous acts of discrimination

which would otherwise be time-barred. See Roberts v. Gadsden Mem’l Hosp., 835

F.2d 793, 800 (11th Cir.), opinion amended on reh’g, 850 F.2d 1549 (11th Cir.

1988). In determining whether a violation is truly “continuing,” the Eleventh Circuit

distinguishes “between the present consequence of a one-time violation, which does

not extend the limitations period, and the continuation of that violation into the

present, which does.” Calloway v. Partners Nat. Health Plans, 986 F.2d 446, 448

(11th Cir. 1993).

The continuing violation doctrine “does not exist to give a second chance to

an employee who allowed a legitimate Title VII claim to lapse.” Id. Yet, that is

exactly what Weatherington is attempting to do. But instead of demonstrating that

the consequences of the alleged discriminatory conduct have extended into the

present, Weatherington has demonstrated only that her injury following each alleged

act of discrimination was the same: she was not awarded the job. This is not enough.

Commonality of injury does not suggest that each discrete violation was itself

continuing. See United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977).

Each decision not to hire or promote Weatherington was permanent and had

an immediate consequence sufficient to put her on notice that a cause of action had

accrued. In following well-settled precedent, this Court now finds the continuing

violation doctrine cannot apply in the instant case, and that each failure to promote

or hire Weatherington stands as its own discrete cause of action. See, e.g., Stuart v.

Jefferson Cty. Dep’t of Human Res., 152 F. App’x 798, 801 (11th Cir. 2005) (holding

employee’s failure to promote claim not included in his EEOC charge was

procedurally barred because it did not grow out of previous failure to promote

claims); Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002) (“Discrete

acts such as … failure to promote … or refusal to hire are easy to identify…. Each

incident of discrimination and each retaliatory adverse employment decision

constitutes a separate actionable ‘unlawful employment practice.’”).

b. Race Discrimination

The Court now turns to the merits of Weatherington’s remaining claims,

beginning with her race discrimination claims. When she filed her complaint, she

alleged race discrimination, under Section 1983 and Title VII, against the Board for

its failure to hire or promote her into the following five positions9: Supervisor of

9 In her deposition, Weatherington clarified that she is not alleging race discrimination as it

concerns DCS’s failure to hire her to fill the Curriculum Director vacancy. (Doc. 18-1, p. 146.)

Exceptional Services10, Principal of Cloverdale Elementary School, Principal of

Highlands Elementary School, Director of Federal Programs, and Principal of Girard

Intermediate School. Based upon the statute of limitations pertinent to her Section

1983 claims and the Title VII exhaustion requirement, not all of these claims warrant

the Court’s analysis. Weatherington’s only remaining Section 1983 claim (Count I)

relates to the Principal of Cloverdale Elementary School, Principal of Highlands

Elementary School, Director of Federal Programs, and Principal of Girard

Intermediate School positions; pursuant to Title VII (Count II), her only actionable

claim relates to the Highlands Elementary School position.

The Fourteenth Amendment’s Equal Protection Clause prohibits intentional

race discrimination in public employment. Bush v. Houston Cty. Comm’n, 414 F.

App’x 264, 266 (11th Cir. 2011). Section 1983, which prohibits the deprivation of a

federal right by a “person acting under color of state law,” provides a cause of action

for a Fourteenth Amendment violation. 42 U.S.C. § 1983; see Albright v. Oliver, 510

U.S. 266, 271 (1994) (noting Section 1983 provides a method for vindicating

infringement of constitutional rights). Title VII similarly prohibits employers from

refusing to hire any individual, or otherwise discriminating against any individual,

“because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C.

10 All claims linked to the Supervisor of Exceptional Services position have been barred entirely.

The statute of limitations already has run on her Section 1983 claim for that position, and her Title

VII claim is barred by Weatherington’s failure to exhaust her administrative remedies.

§ 2000e-2(a)(1). Because the legal elements for Section 1983 and Title VII are

identical, the Court will analyze the claims under both pertinent laws concurrently.

See Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008) (noting that, in the

employment context, race discrimination claims under Title VII and Section 1983

have the same legal elements); Bush, 414 F. App’x at 266 (same).

i. Burden-Shifting Legal Framework

Disparate treatment claims, such as Weatherington’s, require proof of

discriminatory intent, whether by direct or circumstantial evidence. See Schoenfeld

v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999); Carmichael v. Birmingham Saw

Works, 738 F.2d 1126, 1131 (11th Cir. 1984). Direct evidence proves a fact without

inference or presumption and generally takes “the form of actions or remarks of the

employer reflecting a discriminatory attitude.” Hill v. Metro. Atlanta Rapid Transit

Auth., 841 F.2d 1533, 1539 (11th Cir. 1988).

Absent such evidence, a plaintiff may prove its case through circumstantial

evidence by relying on the analytical framework established in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). Both parties acknowledge that

Weatherington’s race discrimination claims are premised solely on circumstantial

evidence, (Doc. 19, p. 30; Doc. 26, pp. 9-10), and are thus subject to the three-step

burden-shifting framework set forth in McDonnell Douglas.

Under this indirect methodology, the plaintiff carries the “initial burden … of

establishing a prima facie case of racial discrimination.” McDonnell Douglas Corp.,

411 U.S. at 802. To make out a prima facie case of racial discrimination in a failure

to hire context, and thus raise an inference of discriminatory intent, a plaintiff must

show that: (1) she belongs to a protected class; (2) she applied and was qualified to

fill a position for which the employer was accepting applications; (3) despite her

qualifications, she was not hired; and (4) someone outside the protected class who

was not better qualified was hired instead. See Brown v. Alabama Dept. of Transp.,

597 F.3d 1160, 1174 (11th Cir. 2010). The comparators for the fourth prong must be

“similarly situated in all material respects.” Lewis v. City of Union City, 918 F.3d

1213, 1218 (11th Cir. 2019) (en banc).

By meeting her prima facie burden, a plaintiff creates a “rebuttable

presumption” that her employer engaged in unlawful discrimination. E.E.O.C. v.

Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1272 (11th Cir. 2002) (citations omitted).

The burden then shifts to her employer to rebut this presumption, which it can do

with evidence that its conduct was taken for some legitimate, non-discriminatory

purpose. Id. at 1273 (citations omitted).

Finally, if the employer successfully meets its burden of production, the

plaintiff “has the opportunity to demonstrate that the defendant’s articulated reason

for the adverse employment action is a mere pretext for discrimination.” Joe’s Stone

Crabs, Inc., 296 F.3d at 1272. A reason is not pretext without a showing that the

reason was false and that the real reason was, in fact, discrimination. See Milledge

v. Rayonier, Inc., 192 F. App’x 863, 865 (11th Cir. 2006). Examples of what would

satisfy the pretext prong include a showing that an employer’s proffered legitimate

reason had no basis in fact, that it did not actually motivate the employment decision,

or that it would have been insufficient, on its own, to do so. Walker v. NationsBank

of Fla. N.A., 53 F.3d 1548, 1564 (11th Cir. 1995). And in a failure to promote or hire

context, courts could look to “weaknesses, implausibilities, inconsistencies,

incoherencies or contradictions” in the proffered legitimate reasons that would

support a factfinder’s inference that they were “unworthy of credence.” Springer v.

Convergys Customer Mgmt. Grp. Inc., 509 F.3d 1344, 1348 (11th Cir. 2007).

“Although the immediate burdens of production shift back and forth, the

ultimate burden of persuading the trier of fact that the employer intentionally

discriminated against the employee remains at all times with the plaintiff.” Id. (citing

Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

For the purpose of its motion for summary judgment, DCS concedes that, as

to each unlawful employment decision alleged, (1) Weatherington was a member of

a racial minority; (2) she applied for and was qualified for each job; and (3) she was

not hired to perform the jobs made the basis of her claims. However, the fourth

element is deeply disputed. For its part, DCS argues that Weatherington cannot

establish a prima facie case, nor can she present any evidence of pretext, because

she cannot show that she was equally or more qualified than each successful

candidate or that DCS otherwise acted discriminatorily. (Doc. 19, p. 31.) DCS

maintains that it hired the most qualified candidate for each vacant position, thereby

precluding any showing of discriminatory motive. Weatherington’s brief, which is

little more than a recitation of the relevant law, does little to challenge DCS’s

argument or the evidence that it presents, but the Court nevertheless addresses

whether, based on the record evidence, Weatherington has met her burden for her

remaining disparate treatment claims. As explained, she has not, and therefore DCS

is due summary judgment.

1. Weatherington’s Prima Facie Case

DCS principally argues that Weatherington has not proffered adequate

comparators who received any advantage in the hiring process or were less or equally

qualified as compared to Weatherington. The Court agrees.

Weatherington’s failure to satisfy her prima facie burden hinges on the

“similarly situated” language in the fourth prong, which the Eleventh Circuit

recently clarified in its decision in Lewis v. City of Union City. In Lewis, the Eleventh

Circuit rejected the district court’s attempt to defer a comparative qualification

analysis to the pretext inquiry and held that this analysis remains part of the initial

prima facie stage of the McDonnell Douglas framework. Lewis, 918 F.3d at 1218.

The result is that, at this stage, the plaintiff must identify a comparator to whom she

was similarly situated in “all material respects.” Id. at 1220-21; but see Vessels v.

Atlanta Indep. Sch. Sys., 408 F.3d 763, 769 (11th Cir. 2005) (subjective assessments

of the candidates play no part in analyzing plaintiff’s prima facie case and rather,

should be evaluated in turn as part of the employer’s burden to produce a race-neutral

basis for its hiring decision and as part of the court’s pretext inquiry); Alvarez v.

Royal Atl. Developers, Inc., 610 F.3d 1253, 1265 (11th Cir. 2010) (“Because

[plaintiff’s] job performance is bound up in the inquiry into whether [defendant’s]

proffered reason for firing her was a pretext for discrimination, we will consider it

at the pretext stage of the analysis.”).

A proper comparator ordinarily will have engaged in the same basic conduct

(or misconduct) as the plaintiff, been subject to the same employment policies and

rules as the plaintiff, and may have reported to the same supervisor as the plaintiff.

Lewis, 918 F.3d at 1227-28. Ultimately, “[i]f a plaintiff fails to show the existence

of a similarly situated employee, summary judgment is appropriate where no other

evidence of discrimination is present.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th

Cir. 1997). The Court assesses Weatherington’s proffered comparators position-by-

position.

a. Cloverdale Elementary Principal

For the Cloverdale position, Weatherington identifies Christy Martin as her

comparator. Martin, a white female, was the successful candidate for the Cloverdale

principal position. And despite her prior experience as an administrator at

Cloverdale, Martin had never been a school principal. Still, Weatherington has not

shown that she was similarly situated to Martin in all material respects and cannot

prevail on the claim that Edwards’ recommendation and the Board’s subsequent

approval was unlawful. 11

Most significantly, Martin and Weatherington do not share a similar history

regarding successful completion of their roles in the DCS system. Weatherington

disputes Martin’s comparative qualifications based on Weatherington’s tenure as

Honeysuckle principal – a role she believes should have distinguished her from other

candidates. But as the DCS highlights, this overlooks Weatherington’s inability to

successfully carry out the role of principal because Weatherington was removed

from that position. (Doc. 19, p. 37.) DCS instead suggests that when it hired Martin

at the recommendation of interim-Superintendent Weeks, it took note of her prior

experience and “proven track record” within the Cloverdale school’s administration.

11 The “cat’s paw” theory of liability permits the discriminatory animus of a non-decisionmaker to

be imputed to a neutral decision maker – or DCS, as Weatherington alleges in this case – that acted

as a mere conduit. Crawford v. Carroll, 529 F.3d 961, 979 n. 21 (11th Cir. 2008). For example, if

there was any evidence of discriminatory animus tied to any of the superintendent’s hiring

recommendations, then the Board’s “rubber stamp” on that recommendation would subject DCS

to liability for race discrimination.

Additionally, DCS notes that Weatherington had no previous experience

working in either an administrative or teaching capacity at an elementary school.

(Doc. 18-3, pp. 1-2.) Martin, by contrast, was already an elementary administrator

at Cloverdale and had preexisting relationships with parents and students at the

school.

These differences, which DCS duly considered when it hired Martin, (id.),

show that Weatherington and Martin are not similarly situated in all material

respects. See Brown v. Synovus Fin. Corp., 783 F. App’x 932, 930 (11th Cir. 2019)

(“None of [the plaintiff’s] colleagues constitute comparators because they occupied

different positions, had different certifications, or worked for different supervisors

than [the plaintiff].”).

b. Highlands Elementary Principal12

Like above, Weatherington has fatally proffered no adequate comparators in

conjunction with the Highlands principal position. She does, however, proffer two

inadequate comparators: Brooklyn Barker, a white female and the successful

candidate; and Erica Hall, a black female who was awarded an interview but not

hired to fill the post. Both comparators were selected for an interview;

Weatherington was not.

12 This is the only position for which Weatherington’s Section 1983 and Title VII race

discrimination claims both remain.

As for Barker, Weatherington cannot successfully put her approximate year-

long failed tenure as a principal up against Barker’s five years of experience doing

the same. That Barker received a positive recommendation sets her candidacy further

apart. There is no evidence that persuades the Court that it can put the distinct

employment histories of Barker and Weatherington side by side, particularly with

the consideration that Barker gained her prior experience in an elementary school.

(Doc. 18-2, p. 3.) The two were simply not similarly situated in all material respects.

See Mathis v. Wachovia Bank, 255 F. App’x 425, 431 (11th Cir. 2007) (a relevant

difference in experience precludes finding that comparators were similarly situated).

Next, the Court notes that Hall, who was selected to interview, was also a

black female, and this similarity in race certainly cuts against Weatherington’s

allegations of race discrimination. Hall, by definition, cannot be a comparator. She

is a black female like Weatherington and thus a member of the same protected class,

meaning that any disparities in treatment between the two is necessarily attributable

to some factor other than race. See, e.g., Herron-Williams v. Alabama State Univ.,

287 F. Supp. 3d 1299, 1314 (M.D. Ala. 2018), aff’d, 805 F. App’x 622 (11th Cir.

2020) (comparator cannot be a member of the same protected class).

c. Director of Federal Programs

Chris Duke, a white male who was hired for the Federal Programs position, is

yet another unsuitable comparator for Weatherington. Jacobs, who was among those

individuals on the hiring committee for the position, documented the committee’s

recommendation to hire Duke as based upon his considerable experience developing

and implementing federally funded programs. (Doc. 18-6, p. 5.) She also cited to

Duke’s exemplary interview performance, for which he ranked first out of seven

interviewees. Meanwhile, Weatherington has presented no evidence to this Court

highlighting that she had any experience managing large budgets that would have

better equipped her for the job, and she ranked seventh after interview scores were

tallied. (Doc. 18-12.) Under the facts before the Court, there is no indication that

Weatherington and Duke were similar based in greater part on the chasm created by

their dissimilar employment histories. See Synovus Fin. Corp., 783 F. App’x at 930.

In her deposition, Weatherington testified that DCS also refused to hire the

undisputedly bright Donnie Chambers for the job. Chambers is a white male who

Weatherington believes shared the “same qualifications” as her. (Doc. 18-1, p. 135.)

He was ranked second after his interview. But the record is devoid of any further

information about Chambers’ credentials, and the Court does not have enough

information to conclude he was similarly situated to Weatherington. See Herron-

Williams, 287 F. Supp. 3d at 1313 (refusing to acknowledge an unnamed comparator

was similarly situated without further evidence vis-à-vis demographics or

credentials). The same can be said for Charles Corbitt, a black male who was ranked

sixth after his interview, though the fact that Corbitt was treated more favorably than

Weatherington despite his race does little to advance her disparate treatment claim.

d. Curriculum Director

Next, Weatherington avers that her rejection from the Curriculum Director

position at DCS’s central office was racially discriminatory and attempts to meet her

prima facie burden by identifying Maria Johnson as a comparator. Again, this

comparator is inadequate. When asked whether she is alleging to have been more

qualified than Johnson, Weatherington responded, simply, “No.” (Doc. 18-1, pp.

145-46.) This concession is weighty. When compounded with a consideration of

Johnson’s objective qualifications, including prior extensive experience as a

principal, system-wide relationships with administrators, and an extremely pertinent

curriculum background, there is simply no evidence that Johnson and Weatherington

were similarly situated. See, e.g., Felder v. Bradford Health Servs., 493 F. App’x

17, 20 (11th Cir. 2012) (two alleged comparators with different experiences,

credentials, job duties, and qualifications were not similarly situated).

e. Girard Intermediate Principal

The hiring of Sara Bouchard as Principal at Girard Intermediate School is the

basis for Weatherington’s final race discrimination claim and is yet another for

which this Court cannot discern a sufficiently situated comparator. Bouchard

boasted a unique background working with the International Baccalaureate (“IB”)

curriculum, which in and of itself distinguishes her candidacy from Weatherington’s

candidacy and uniquely prepared her for an administrative role at a school that was

transitioning to an IB curriculum. Weatherington, whose experience was primarily

in secondary education administration at PASS Academy and Dothan High, and who

had no IB experience, was not similarly situated to Bouchard.

2. Race-Neutral Reasons for Hiring Decisions and Pretext

Even if the Court were to accept Weatherington’s comparator theories, it

cannot conclude she has established an Equal Protection claim based on her

nonselection to the positions identified in the Complaint. Put simply, there is no

evidence before the Court that DCS engaged in discrimination on the basis of race.

And for its part, DCS readily meets its “exceedingly light” shifted burden by

presenting several race-neutral reasons for hiring the other candidates. See Tipton v.

Canadian Imperial Bank of Commerce, 872 F.2d 1491, 1495 (11th Cir. 1989).

Moreover, DCS demonstrates a concerted effort to credibly corroborate its

race-neutral reasons. As DCS personnel including Edwards, Weeks, Ledbetter,

Jacobs and Cunningham detail in their respective affidavits, DCS hired on a

position-specific basis and considered a number of hard and soft factors. For the

positions from which Weatherington was rejected, these factors included each

candidate’s interview performance, references, prior experience, curriculum and

assessment background, leadership qualities, relationships with other administrators

and school community, and track record. (See Doc. 18-2; Doc. 18-3, p. 2; Doc. 18-

4, p. 3.) That these affidavits articulate these reasons with consistency and specificity

to each position, despite the number of varying personnel involved with each hiring

decision, bolsters their trustworthiness.

And a final note on DCS’s stated reasons: the fact that they are largely

subjective does not undercut their veracity. See Denny v. City of Albany, 247 F.3d

1172, 1186 (11th Cir. 2001) (“Personal qualities … factor heavily into employment

decisions concerning supervisory or professional positions. Traits such as common

sense, good judgment, originality, ambition, loyalty, and tact often must be assessed

primarily in a subjective fashion, yet they are essential to an individual’s success in

a supervisory or professional position.”) (citations and quotations omitted); Vessels,

408 F.3d at 771 (employer may rely on subjective evaluations in hiring, so long as

they are non-discriminatory, clear, and reasonably specific). DCS thus returns the

burden to Weatherington for a showing of pretext.

3. Evidence of Pretext

All told, Weatherington has failed to present any evidence of pretext that

exposes DCS’s hiring practices as “unworthy of credence.” At best, Weatherington

has offered conclusory allegations that for every job she applied to fill, she was

equally or more qualified than the more successful candidate. True, she had served

as a principal for fourteen months and had worked as a school administrator in

several DCS schools. But her self-professed credentials are not near sufficient to call

into question whether the Board’s reasons for hiring other candidates were mere

pretext to conceal racial bias. See Mayfield v. Patterson Pump Co., 101 F.3d 1371,

1376 (11th Cir. 1996); Lee v. GTE Fla., Inc., 226 F.3d 1249, 1253 (11th Cir. 2000)

(plaintiff must do more than show that she was better qualified to prove pretext and

further recognizing employer’s considerable discretion in hiring so long as criteria

is not unlawful).

Rather, a plaintiff “must show that the disparities between the successful

applicant’s and [her] own qualifications were ‘of such weight and significance that

no reasonable person, in the exercise of impartial judgment, could have chosen the

candidate selected over the plaintiff.’” Barber v. Cellco P’ship, 808 F. App’x 929,

936 (11th Cir. 2020) (citing Cooper v. S. Co., 390 F.3d 695, 732 (11th Cir. 2004)).

Objectively speaking, and from what little is known about each individual’s

respective qualifications, Weatherington was equipped for the respective

administrative positions; but she was not as equipped as Martin, Barker, Duke,

Johnson, or Bouchard, to name a few.

Under the facts presented, DCS would have had no choice but to rely on its

own subjective assessments of each candidate’s application and interview. And here,

even subjecting DCS’s proffered reasons to close scrutiny, the Court can detect no

basis for the claim that unlawful discrimination was at play. Here, the Court is

reminded of the difficulty that comes with proving a negative. But under this

schematic, the onus rests on the plaintiff to support his or her claims. Weatherington

has fatally neglected to highlight any contradictions, inconsistencies, or

implausibilities in DCS’s proffered reasons, and even damningly conceded that she

“[doesn’t] have any evidence.” (Doc. 18-1, pp. 136-37.)

Further, where subjective factors drove a decision, it is not the Court’s duty

to “sit in judgment of the wisdom of an employer’s selection.” Cooper, 390 F.3d at

732; Pennington v. City of Huntsville, 261 F.3d 1262, 1267 (11th Cir. 2001). In the

Court’s view, it was reasonable for DCS to base its hiring choices upon Martin’s

preexisting relationships with her school community; Barker’s five-years of

experience as a principal; Duke’s familiarity with federal funding; Johnson’s

extensive history with DCS; and Bouchard’s IB background.

Tangentially, Weatherington also makes a vague argument that the apparent

“pre-selection” of Martin at Cloverdale Elementary denotes pretext. (Doc. 26, p. 16.)

She testified that the outgoing principal at Cloverdale had told several Cloverdale

teachers that “Christy [Martin] was going to get the job,” (Doc. 18-1, p. 78), a

statement she believes constituted a blatant show of favoritism that disregarded the

proper hiring procedures. But this belief ignores that it is the Court’s duty to apply

the law, not corporate policy. Simply because “preselection violates corporate

personnel policies… does not necessarily indicate racial discrimination.” Springer,

509 F.3d at 1350; see also Jenkins v. Nat’l Waterworks, Inc., 502 F. App’x 830, 833

(11th Cir. 2012).

Even if the outgoing Cloverdale principal’s preference for Martin had been

improper, which is not supported by the record, there is no indication that the

preference motivated the employment decision or would have been sufficient to do

so. The Court cannot read the principal’s isolated statement as discriminatory intent.

Accordingly, Weatherington has failed to fulfill her shifted burden under McDonnell

Douglas and the Court grants summary judgment in the Board’s favor on this claim.

ii. Convincing Mosaic

Alternatively, Weatherington cannot advance her claims under a “convincing

mosaic” analysis. The Eleventh Circuit has made it clear that “establishing the

elements of the McDonnell Douglas framework is not, and never was intended to

be, the sine qua non for a plaintiff to survive a summary judgment motion in an

employment discrimination case.” Lockheed-Martin Corp., 644 F.3d 1321, 1328

(11th Cir. 2011). Rather, the plaintiff will survive summary judgment if she can

present a “convincing mosaic” of circumstantial evidence that would permit a jury

finding of intentional discrimination. Lewis, 918 F.3d at 1221. Weatherington and

DCS have given no indication that they intend to proceed under the convincing

mosaic standard, but out of an abundance of caution, the Court addresses it now.

A plaintiff can show a convincing mosaic with “evidence that demonstrates,

among other things, (1) ‘suspicious timing, ambiguous statements..., and other bits

and pieces from which an inference of discriminatory intent might be drawn,’

(2) systematically better treatment of similarly situated employees, and (3) that the

employer’s justification is pretextual.” Lewis, 934 F.3d at 1185 (quoting Silverman

v. Bd. of Educ. of City of Chi., 637 F.3d 729, 733–34 (7th Cir. 2011)).

Weatherington’s evidence is scarce and when considered cumulatively

certainly does not rise to the level of a reasonable inference of discrimination. In

support of her claims of discrimination, Weatherington points to DCS’s dearth of

uniform hiring procedures, (Doc. 26, p. 18), a newspaper article in which an

individual expressed frustration with DCS’s failure to prioritize diversity in hiring,

(Doc. 26-1), alleged favoritism shown by the outgoing principals (all of their races

unknown) at Cloverdale and Highlands, (Doc. 26, p. 16), and her own observation

that DCS had hired a principal with no prior experience in elementary school

administration at another elementary school in the district, (id.). Most of all, she

condemns DCS’s “invisible suspicious hand” that denied her jobs in favor of white

candidates on the five separate occasions now at issue. (Doc. 26, p. 18.)

Weatherington also questions DCS’s reliance on subjective criteria in hiring – so

subjective, she suggests, that they must create a triable issue of fact. (Doc. 26, p. 18.)

Viewed in the light most favorable to Weatherington, it is not difficult to see

that she may feel personally slighted by DCS’s intermittent rejection. But DCS was

never under an imperative to hire Weatherington; its legal imperative was to refrain

from discriminatory conduct. The Court cannot reasonably infer racial animus from

the fact that DCS hired five white women and one white man to fill the positions

that Weatherington targets in this lawsuit, especially given the evidence that DCS

employed other black principals like Jeffrey Torrence and Darius McKay, (see Doc.

18-5), and treated other black candidates like Erica Hall and Charles Corbitt more

favorably than Weatherington, (Doc. 18-3, p. 2; Doc. 18-1, pp. 136-37).

Weatherington’s claims under the convincing mosaic standard fare no better

than under the burden-shifting framework, and her incomplete mosaic cannot

support a reasonable inference of discrimination. The Court confirms its conclusions

that DCS is due summary judgment on Weatherington’s race discrimination claims.

c. Retaliation

Title VII of the Civil Rights Act of 1964 forbids an employer from retaliating

against an employee because of the employee’s opposition to “any practice made an

unlawful practice” by Title VII, or the employee’s participation in “an investigation,

proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e-3(a). As with the

substantive race discrimination inquiry, the McDonnell Douglas burden-shifting

analysis also applies to retaliation claims relying on circumstantial evidence, such

as this one.

“A prima facie case of retaliation under Title VII requires the plaintiff to show

that: (1) she engaged in an activity protected under Title VII; (2) she suffered an

adverse employment action; and (3) there was a causal connection between the

protected activity and the adverse employment action.” Crawford v. Carroll, 529

F.3d 961, 970 (11th Cir. 2008). An employee who makes out a prima facie case

creates a presumption that the adverse action was the product of an intent to retaliate.

If a plaintiff establishes a prima facie case, the burden shifts to the employer

to articulate a legitimate, nonretaliatory reason for its employment decision. See

Laosebikan v. Coca-Cola Co., 167 F. App’x 758, 764 (11th Cir. 2006). The ultimate

burden of proving by a preponderance of the evidence that the employer’s reason is

pretext for prohibited conduct remains with the plaintiff. Id.

DCS asserts that, as to all positions, Weatherington has failed to demonstrate

the first and third elements required for her retaliation claim, which Weatherington

disputes. But because Weatherington’s only actionable retaliation claim is that

concerning the principal position at Highlands Elementary school, that is the only

claim the Court addresses here. Ultimately, due to the absence of any protected

activity and the insufficiency of her causal allegations, Weatherington cannot

establish a prima facie retaliation claim.

i. Protected Activity

Title VII recognizes two forms of statutorily protected expression, including

(1) opposing an employment practice made unlawful under Title VII (the opposition

clause); or (2) charging, testifying, assisting, or participating in a Title VII

investigation, proceeding, or hearing (the participation clause). 42 U.S.C. § 2000e–

3(a); Ceus v. City of Tampa, 803 F. App’x 235, 245 (11th Cir. 2020).

If making a claim based on the former opposition clause, a plaintiff must have

a “good faith, reasonable belief that the employer was engaged in unlawful

employment practices.” Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1311

(11th Cir. 2016) (quoting Little v. United Tech., Carrier Transicold Div., 103 F.3d

956, 960 (11th Cir. 1997)). Under this standard, a plaintiff must show both that she

subjectively believed her employer was engaged in unlawful employment practices

and that her belief was objectively reasonable. Id.

The latter participation clause protects conduct, for example, associated with

or following the formal filing of an EEOC charge; however, it offers no protections

to employees who participate in internal business decisions or investigations apart

from a formal EEOC charge. See, e.g., Ceus, 803 F. App’x at 245; E.E.O.C. v. Total

Sys. Servs., Inc., 221 F.3d 1171, 1176 (11th Cir. 2000). It now bears repeating that

“[u]nfair treatment, absent discrimination based on race, sex, or national origin, is

not an unlawful employment practice under Title VII.” Coutu v. Martin Cty. Bd. of

Cty. Comm’rs, 47 F.3d 1068, 1074 (11th Cir. 1995) (holding employee’s written

grievance to employer containing conclusory race discrimination allegations lacked

supporting proof and thus did not constitute protected activity).

The sole basis for Weatherington’s retaliation claim is the Settlement

Agreement she reached with DCS in February 2016, (see Doc. 18-8), which

followed her removal from Honeysuckle as the principal and facilitated her transfer

to Dothan High as an assistant principal. In this instance, even if Weatherington

subjectively believed that DCS was engaging in unlawful discrimination, the parties’

conduct following the removal does not support an objectively reasonable belief that

DCS was unlawfully discriminating against her. For Weatherington’s part, she made

no mention to anyone at DCS that her discontentment with the removal stemmed

from her belief that it was discriminatory. In fact, she only communicated about the

transfer with two DCS officers: Ledbetter and then-Board-member Jones. She spoke

to Ledbetter upon receiving notice of the transfer, but rather than vocalizing her

belief that his desire to “go in a different direction” was discriminatory, she only told

him that she would not sign the letter and promptly left the meeting. (Doc. 18-1, pp.

28-29.) Jones, to whom she spoke immediately after meeting with Ledbetter,

confirmed that Ledbetter removed her from Honeysuckle based on Ledbetter’s

desire to take Honeysuckle in “a different direction.” (Id., p. 33.) From the facts,

Jones said nothing to insinuate that racial bias prompted Ledbetter’s conduct, and

neither did Weatherington at the time.

From the record, the Court cannot glean discriminatory motive on the part of

DCS either before or after the removal, nor can it point to any moment at which DCS

would have learned that Weatherington believed DCS’s decision to remove her from

Honeysuckle was discriminatory. Weatherington presents no evidence that she

opposed the removal on grounds of discrimination, and further fails to show that

DCS would have been able to infer as much. See Damon v. Fleming Supermarkets

of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir. 1999) (“[Courts] are not in the business

of adjudging whether employment decisions are prudent or fair. Instead, our sole

concern is whether unlawful discriminatory animus motivates a challenged

employment decision.”).

While it is true that Weatherington spoke with AEA and retained counsel,

there is no indication or evidence that any of these representatives made any mention

of discrimination in their conversations with DCS personnel, even in the course of

negotiating the Settlement Agreement. True, formal or informal complaints of

discrimination may constitute protected activity under Title VII, but excluding any

mention of discrimination whatsoever from those complaints removes any Title VII

protections where inferences of discrimination are not objectively reasonable. See,

e.g., Ceus v. City of Tampa, 803 F. App’x 235, 248 (11th Cir. 2020) (employee’s

letter demanding a reimbursement for forced leave time that did not reference race

or discrimination does not fall within Title VII’s ambit); Herron-Williams v.

Alabama State Univ., 805 F. App’x 622, 632 (11th Cir. 2020) (email sent by

employee with only one unsubstantiated and conclusory allegation of discrimination

was not legally protected activity); Biggers v. Koch Foods of Alabama, LLC, 461 F.

Supp. 3d 1176, 1186 (M.D. Ala. 2020) (internal complaints that made no mention

of racial discrimination not protected conduct).

Unfair treatment is not necessarily unlawful discrimination, and in this case,

it is not objectively reasonable to believe that DCS’s negative treatment of

Weatherington was based on race, particularly when acknowledging that

Weatherington’s replacement at Honeysuckle was a black male. (Doc. 18-1, p. 194.)

In short, the Settlement Agreement reached between DCS and Weatherington (along

with the preceding negotiations) in 2016 does not constitute statutorily protected

activity under Title VII; thus, granting summary judgment on her retaliation claim

relating to the Highlands principal position is proper.

ii. Causal Connection

Even assuming arguendo that Weatherington has adduced sufficient evidence

to demonstrate she engaged in protected activity, she still cannot establish the causal

link requirement. To do so, a plaintiff must prove that the relevant decisionmaker

knew of the protected activity and that the protected activity and adverse

employment action were not wholly unrelated. See Johnson v. Coffee Cty. Comm’n,

714 F. App’x 942, 945 (11th Cir. 2017). “A ‘close temporal proximity’ between the

protected expression and an adverse action is sufficient circumstantial evidence of a

causal connection for purposes of a prima facie case.” Higdon v. Jackson, 393 F.3d

1211, 1220 (11th Cir. 2004).

Weatherington applied for the Highlands Elementary Principal position in

June 2018 – more than 2 years after finalizing her Settlement Agreement in February

2016. This length of time is certainly not “very close” by ordinary standards, and for

Title VII purposes is so substantial that Weatherington’s claim must fail as a matter

of law. Id. at 1221 (3-month period insufficient to show causal relation); Simpson v.

State of Alabama Dep’t of Human Res., 501 F. App’x 951, 955 (11th Cir. 2012)

(outer limit for the test of close temporal proximity sits at around three or four

months).

The record is further void of any evidence indicating the hiring personnel had

“actual awareness” of Weatherington’s Settlement Agreement. The “actual

awareness” requirement “rests upon common sense…. A decisionmaker cannot have

been motivated to retaliate by something unknown to him.” Brungart v. BellSouth

Telecommc’ns, Inc., 231 F.3d 791, 799 (11th Cir. 2000). Hence, the knowledge of a

non-decisionmaker cannot be imputed to the decisionmaker. Id. at 800. Hiring for

the Highlands position was conducted by unnamed persons on an interview panel,

and Dr. Edwards made the final decision to recommend hiring Barker to the Board.

Dr. Edwards, who claims not to have had any knowledge of the Settlement

Agreement until this lawsuit was filed in 2019, did not become superintendent of

DCS until February 2018. (Doc. 18-2, p. 2.) Based on this timeline and the evidence

in her affidavit, she would have had no knowledge of the Settlement Agreement at

the time she made the hiring recommendation for the Highlands position in June

2018. (Id.) Weatherington not only neglects to dispute this, but also stated in her

deposition that she “didn’t accuse Dr. Edwards of retaliating none (sic).” (Doc. 18-

1, p. 151.) Moreover, Weatherington did not even interview for the position, so her

name would not have been among those presented to Dr. Edwards for the final

selection. Therefore, a retaliation claim against the Board based upon Dr. Edwards’

conduct cannot stand.

It would be speculative, at best, to assert that any of the decisionmakers in this

case – be it the interview committee, Dr. Edwards, or the Board – were influenced

not to hire Weatherington based on racial bias. But a mere “hunch” that another

employee with knowledge of the protected expression informed a decisionmaker of

the protected expression does not constitute the “significant probative evidence”

necessary to avoid summary judgment. See Raney v. Vinson Guard Serv., Inc., 120

F.3d 1192, 1198 (11th Cir. 1997). The record lacks the substantive evidence that

would be necessary to infer causation in this case, and summary judgment is due to

be granted on Weatherington’s remaining retaliation claim.

d. Equal Pay Act

Weatherington asserts an additional claim, premised on the male comparators’

salaries set forth above, that DCS paid her less than similarly situated black male

principals and that the pay disparity constitutes wage discrimination under the Equal

Pay Act, 29 U.S.C. § 206(d) (“EPA”).13 To prevail on her EPA claim, Weatherington

must demonstrate a prima facie case that DCS paid Weatherington less than it paid

men “for equal work for jobs which require equal skill, effort, and responsibility,

and which are performed under similar working conditions.” 29 U.S.C. § 206(d)(1);

see Steger v. Gen. Elec. Co., 318 F.3d 1066, 1077–78 (11th Cir. 2003).

13 In the Complaint, Weatherington challenges the pay disparity under the heading “Equal Pay Act

Violation,” which ostensibly implies that she brings this claim under the Equal Pay Act. (Doc. 1,

p. 10.) However, in Paragraph 24 of the Complaint, she notes that the disparities violate “Title VII

of the Civil Rights Act of 1964.” (Id.) True, a plaintiff can sue his employer under Title VII and

the EPA, and the Eleventh Circuit has explained that the similarities and differences between these

statutory remedies hinge on the plaintiff’s burden of proof. See Miranda v. B & B Cash Grocery

Store, Inc., 975 F.2d 1518, 1526 (11th Cir. 1992). Whereas the EPA requires a plaintiff to meet a

“fairly strict” burden of proving she did “substantially similar” work for less pay before shifting

the burden of producing an affirmative defense on to the defendant, Title VII only requires a

plaintiff to show a more “relaxed standard of similarity” between the jobs, but must prove an intent

to discriminate on the basis of sex. Id. For the sake of completeness, the Court notes that to the

extent Weatherington alleges wage discrimination under Title VII, her claim is unavailing. Just as

she has neglected to produce any evidence that DCS’s legitimate, non-discriminatory salary matrix

was pretext for discriminatory conduct, she has likewise neglected to make a showing that DCS

engaged in intentional discrimination when it paid her male comparators more based on their

completion of a probationary period. See Reddy v. Dep’t of Educ., Alabama, 808 F. App’x 803,

813 (11th Cir. 2020) (gender neutral reason for pay disparity precluded finding of wage

discrimination under both the EPA and Title VII).

If Weatherington is able to make such a showing, DCS may avoid liability by

presenting an affirmative defense that the payments were made pursuant to “(i) a

seniority system; (ii) a merit system; (iii) a system which measures earnings by

quantity or quality of production; or (iv) a differential based on any other factor than

sex.” Irby v. Bittick, 44 F.3d 949, 954 (11th Cir.1995). This heavy burden requires

DCS to demonstrate that “the factor of sex provided no basis for the wage

differential.” Steger, 318 F.3d at 1078 (citation omitted). Finally, Weatherington

may attempt to demonstrate that a genuine issue of material fact exists with respect

to the defendant’s affirmative defense by presenting evidence that the reasons

proffered for the wage differential were merely pretext for unlawful wage

discrimination on the basis of gender. See Irby, 44 F.3d at 954.

DCS argues there has been no violation of the Equal Pay Act. First, it contends

the inequality in pay was due to Weatherington’s probationary status. Second, it

claims the wage differential was, to quote the statute, based on a “factor other than

sex.” This factor was the completion of a probationary period, as it claims Ala. Code

§ 16-8-23 makes compulsory. At the outset, the Court recognizes it is undisputed

that salaries awarded under probationary principal contracts are lower than those

awarded under three-year principal contracts that typically follow probationary

contracts. It is further undisputed that Weatherington herself was employed pursuant

to such a probationary principal contract. And for the reasons discussed below, the

Court concludes that DCS is entitled to summary judgment on Weatherington’s EPA

claim.

i. Prima Facie Case and Comparators

Though her EPA claim is ultimately nonmeritorious, Weatherington has

identified sufficient evidence to suggest that males Jeffrey Torrence and Darius

McKay were paid comparably more than she was paid during her tenure as principal

at Honeysuckle Middle School for the job of principal. Notably, to meet her burden,

Weatherington must show that the jobs at issue are “substantially equal” in terms of

skill, effort and responsibility; however, she need not show that the skills or

qualifications of the males holding the positions are substantially equal to her own.

See Arrington v. Cobb Cty., 139 F.3d 865, 876 (11th Cir. 1998), as amended (May

28, 1998). The controlling factor for consideration is the job content, though job

titles may also be considered in the court’s assessment. Id.

DCS disputes that Weatherington has made a prima facie showing on the

grounds that she was awarded a probationary contract, and that it would be

imprudent to compare Weatherington’s probationary contract salary to that of a

principal who has already completed his probationary period. But it is important to

bear in mind that the prima facie case under the EPA is established by comparing

the jobs held by female and male employees, and not by comparing the relative

backgrounds and qualifications of the individuals in those positions. See Brock v.

Georgia Sw. Coll., 765 F.2d 1026, 1032 (11th Cir. 1985), disapproved of on other

grounds by McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988). Thus, neither

DCS nor this Court can rely on Weatherington’s probationary status, alone, to defeat

her prima facie showing.

To the contrary, all evidence in the record supports a finding that the middle

school principal positions held by Weatherington, Torrence, and McKay entailed

substantially similar, if not the same, responsibilities and were held under

substantially similar conditions. In fact, based on the record, the Court recognizes

that all three individuals were placed in middle schools facing certain struggles.14

Weatherington was placed at Honeysuckle – a school that by DCS’s own account

was “struggling.” (Doc. 18-4, p. 2.) Torrence was also placed at Honeysuckle as the

principal, where he replaced Weatherington when she was transferred away in 2016

pursuant to the Settlement Agreement. McKay was the principal at Girard Middle

School, which Ledbetter also described as a school “facing some struggles.” (Id.)

DCS’s assertions that the unique professional circumstances facing Torrence and

McKay in their respective school environments set them apart overlook the fact that

Weatherington herself worked in a “struggling” school. Yet Weatherington was paid

14 DCS does not explain the specific duties and responsibilities that each principal held or how

they might differ from school to school. Instead, it argues that the working conditions were

different because certain middle schools, i.e., Honeysuckle and Girard, faced certain struggles,

though it does not apprise the Court of what those struggles were. (See Doc. 19, pp. 50-51.)

$80,659.50 annually, as compared to Torrence and McKay’s respective annual

salaries of $95,220.00. To this end, DCS’s argument that Torrence and McKay

worked principal jobs incomparable to Weatherington’s principal job is unavailing,

as it presents a question of fact on which reasonable jurors could differ. And because

Weatherington’s probationary status is better considered as part of DCS’s

affirmative defense, the Court moves on to the next stage in its assessment.

ii. Affirmative Defense

While the Court finds that Weatherington has met her prima facie burden,

DCS more than successfully refutes her EPA claim in its entirety. As it explains in

its motion, the wage differential Weatherington challenges is not based upon gender,

but rather on each principal’s prior relevant experience under a matrix. More

precisely, DCS awards all first-time principals a probationary contract to last for a

period of one to two years. Only upon completion of this probationary period are

principals eligible for a three-year contract and higher annual salary. (See Doc. 18-

5.) But Weatherington herself was not eligible for such a contract when she was

hired as a principal at Honeysuckle.

This affirmative defense fits squarely into the general exception to the EPA,

which allows employers to submit evidence that the wage differential is based on

any factor other than sex. 29 U.S.C. § 206(d)(1). The Eleventh Circuit has

interpreted this language to include such factors as “unique characteristics of the

same job; ... an individual’s experience, training or ability; or ... special exigent

circumstances connected with the business.” Irby, 44 F.3d at 955 (quoting Glenn v.

Gen. Motors Corp., 841 F.2d 1567, 1571 (11th Cir. 1988)).

At all times relevant to Weatherington’s EPA claim, she was employed under

a probationary contract and was thus considered a probationary principal. Torrence

and McKay, too, were once employed as probationary principals, but had completed

their probationary periods and been elevated to contract principal status pursuant to

three-year employment contracts. Notably, while employed as probationary

principals, Torrence and McKay were paid $80,251.86 and $78,164.47, respectively.

These amounts are less than Weatherington’s probationary salary of $80,659.50, and

they indicate clearly to the Court that DCS’s salary matrix and probationary contract

distinction are gender neutral.

Moreover, Weatherington’s comparators were awarded salaries based upon

meaningful differences in experience level. Torrence spent two years as a principal

prior to attaining contract principal status and taking over at Honeysuckle (time

earned during his probationary period), and McKay had amassed two years of

experience as a principal, plus six years of experience as an assistant principal in a

different school system. Again, Weatherington had never held a principal position.

This comparative difference in experience alone serves as a valid justification for

the male principals’ wage differentials that the Court will not second-guess

retroactively, especially since it appears that Weatherington actually earned more

when all three individuals’ probationary salaries are compared. See Irby, 44 F.3d at

956 (experience is an acceptable factor other than sex, so long as it is not used as a

pretext for gender discrimination); Blackman v. Fla. Dep’t of Bus. & Prof’l

Regulation, 599 F. App’x 907, 912 (11th Cir. 2015) (differences in experience and

education between male and female employee sufficient to demonstrate a factor

other than sex).

iii. Evidence of Pretext

Weatherington offers no evidence to create a triable issue that DCS’s salary

matrix was offered as pretext for gender discrimination. She concedes that she was

employed under a probationary contract, (Doc. 18-1, p. 49), and beyond shallowly

questioning the distinction between probationary and contract status, (Doc. 26, p.

23), proposes nothing to rebut DCS’s legitimate, non-discriminatory methods for

determining principal salaries. A plaintiff cannot show pretext simply by disagreeing

with the wisdom of an employer’s decision. See, e.g., Mahone v. BBG Specialty

Foods, Inc., No. 1:16CV00655-SRW, 2018 WL 1526336, at *8 (M.D. Ala. Mar. 28,

2018). And this Court is not under any obligation to consider mere conclusory

testimony. See Carter v. Three Springs Residential Treatment, 132 F.3d 635, 642

and n. 6 (11th Cir. 1998). Weatherington’s glaring failure to present any evidence

that undercuts DCS’s gender neutral salary matrix is a clear indication that this claim

cannot stand; accordingly, the Court grants summary judgment on her EPA claim.

VII. CONCLUSION

For the foregoing reasons, the Board’s Motion for Summary Judgment, (Doc.

18), is GRANTED as to all claims in the Complaint and this case is dismissed with

prejudice. Costs shall be taxed against the Plaintiff.

DONE, this 28th day of December, 2020.

/s/ R. Austin Huffaker, Jr.

R. AUSTIN HUFFAKER, JR.

UNITED STATES DISTRICT JUDGE