Harper v. Houston County Board of Education

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

KACEY HARPER, )

)

Plaintiff, )

)

v. ) CASE NO. 1:17-cv-721-ALB

)

HOUSTON COUNTY BOARD OF )

EDUCATION, a local education )

authority; )

TIM PITCHFORD, MARSHA )

SHELLEY, and BRANDY WHITE,

each in his or her individual capacity,

Defendants.

MEMORANDUM OPINION AND ORDER

This matter comes before the court on Defendants the Houston County Board

of Education, Tim Pitchford, Marsha Shelley, and Brandy White’s motion for

summary judgment. (Doc. 26). Plaintiff Kacey Harper taught as a non-tenured

teacher at Webb Elementary School. Her teaching career at Webb Elementary ended

abruptly at the end of her third year when the Houston County Board of Education

(“the Board”) nonrenewed her contract. Now Harper complains that the nonrenewal

was unconstitutional retaliation, suing the Board and three persons in their individual

capacities: Tom Pitchford, superintendent for the Board;1 Marsha Shelley, principal

1 Tom Pitchford was superintendent at all times relevant to this case. Following his retirement,

Sewell became the current superintendent winning an election. (Doc. 26-3 at 2–3).

of Webb Elementary School; and Brandy White, assistant principal of Webb.

Specifically, Harper complains that she was nonrenewed because (1) she reported to

the State Board of Education that another teacher was allegedly cheating on a

standardized test, or (2) she declined to support her supervisor’s preferred candidate

for superintendent.

Upon consideration, the motion is GRANTED.

BACKGROUND

Harper’s complaint stems from an election and an investigation.

Harper taught at Webb Elementary during the election for Houston County

Superintendent. Being part of Houston County, many employees of Webb

Elementary took an interest in who their next boss would be. (Doc. 26-1 at 9).

Unremarkably, some employees, including White, assisted in the various campaigns.

(Doc. 26-1 at 9).

The investigation began with some allegations of cheating on the ACT Aspire

test. At the time of this dispute, all public schools in Alabama took this test, which

employs a variety of safeguards to prevent cheating. (Doc. 26-9 at 3). In Spring 2016,

the Houston Board of Education received anonymous allegations of cheating and

reported the allegations to the State Department of Education. (Doc. 26-9 at 3–4).

The State asked Joseph Haddock to investigate the allegations. (Doc. 26-9 at 4). At

Superintendent Pitchford’s suggestion, a third-party, Dr. Ronnie Jackson, assisted

with the investigation. (Doc. 26-2 at 8; Doc. 26-9 at 4). As part of the investigation,

Haddock and Jackson interviewed “each faculty member at Webb during the 2013–

2014 and 2014–15 school years.” (Doc. 26-9 at 4). During the interview with Harper,

she told Haddock and Jackson:

There was investigation, the ACT Aspire, of reports of … cheating on

the ACT Aspire. And when investigations took place with Mr. Haddock

and the gentleman from the State and questions were asked to all staff

members, I gave my truthful statement of what I had witnessed. And

due to that being Ms. Shelley’s niece, then when that got discussed,

later date, that was what I was—I was nonrenewed because of me

telling what I had witnessed and it being Ms. Shelley’s niece.

(Doc. 26-1 at 4). According to Haddock, Harper told him and Jackson that “during

a professional development training, Brandi Paramore showed teachers an exemplar

and commented ‘that was on the test.’ Ms. Harper denied knowledge of any actual

testing violations.” (Doc. 26-9 at 4). Haddock noted that “[d]uring the interview and

investigative process, no one provided information concerning an actual testing

violation.” (Doc. 26-9 at 5). Ultimately, Haddock did not find any substance to the

allegations during his investigation.

Harper’s Testimony

Harper does not know when Defendants made the decision to nonrenew her.

(Doc. 26-1 at 8). But Harper believes she was nonrenewed for two reasons. First,

Harper told the investigators that Shelley’s niece, who was also a teacher, was

cheating on the ACT Aspire. (Doc. 26-1 at 4). Second, Harper believed that Shelley

thought she did not support Shelley’s preferred candidate for superintendent, Matt

Swann. (Doc. 26-1 at 9).

As to Harper’s first claim, it is undisputed at this juncture that Harper told

investigators that “during a professional development training, [Shelly’s niece]

showed teachers an exemplar and commented ‘that was on the test.’” (Doc. 26-9 at

4). As to her second claim, however, Harper admitted she had no evidence that

Shelley and White believed she did not support Swann. (Doc. 26-1 at 10–11). In fact,

Harper asked White for a Matt Swann campaign sign, and White “actually came to

[her] home, at [her] request, and put a Matt Swann sign in [her] house.” (Doc. 26-1

at 10). And Harper never discussed with Shelley who she supported in the election.

(Doc. 26-1 at 24).

Harper supposes that White might have told Shelley that Harper declined

White’s invitation to pass out fliers on two occasions and to attend a rummage sale.

But Harper does not remember much of the conversation regarding the rummage

sale, just that she ultimately did not go to the sale. (Doc. 26-1 at 18). She decided

not to go because she heard in a conversation with White and other staff members

that some attendees would be wearing Matt Swann shirts. (Doc. 26-1 at 21–22).

Harper also does not remember any details from the conversations about passing out

fliers, only that she did not pass them out. (Doc. 26-1 at 19–20).

When Harper spoke with the other nonrenewed teacher, that teacher said she

believed she was nonrenewed for not being willing to change grade levels when

asked. (Doc. 26-1 at 11–12).

Other Testimony

Shelley recommended Harper and one other third-year teacher for

nonrenewal. The reason Shelley nonrenewed the other third-year teacher was that

the teacher did not show love and care towards the children. (Doc. 26-5 at 30–31).

As for Harper, Shelley stated that she had multiple reasons for recommending her

nonrenewal, which together formed the basis for her decision.

First, Marla Rice, a special ed aide at Webb Elementary, complained that

Harper “lacked the compassion and care other teachers at Webb Elementary

demonstrated.” (Doc. 26-4 at 5). Rice’s daughter, who had special medical needs,

frequently had to miss class. After one absence, Rice’s daughter saw some art

projects the students had been working on and asked to make-up the missed art

project. (Doc. 26-12 at 2–3). Despite some art projects still being incomplete, Harper

refused to allow Rice’s daughter to do the art project. (Doc. 26-12 at 3). Rice

transferred her daughter out of the class and to a different school later that year.

(Doc. 26-12 at 3). Shelley gave Rice’s complaint great weight because Rice was both

a parent and a special ed aide who interacted daily with faculty. (Doc. 26-4 at 5).

Also, Shelley had never received a similar complaint about a teacher she was

considering for renewal. (Doc. 26-4 at 5).

Second, Harper did not include one of the other third-grade teachers, Ms.

Brawner, in joint grade-level activities. (Doc. 26-4 at 5).

Third, Shelley found Harper to be insubordinate. One day, Shelley noticed

that some children on the playground needed more supervision. (Doc. 26-4 at 6).

She saw Harper and another teacher sitting in the gazebo on the playground, so she

told them they needed to go watch the children. (Doc. 26-4 at 6). The other teacher

immediately got up. (Doc. 26-4 at 6). But Harper ignored Shelley, so Shelley had to

watch the children herself. (Doc. 26-4 at 6–7).

Fourth, in front of parents and faculty, Harper said that “her own child was

what was important to her” in a manner that made the parents feel like their children

were not Harper’s main priority. (Doc. 26-4 at 7).

Fifth, Harper lobbied to remain in third-grade after Shelley had told faculty

that she was considering reassigning teachers. (Doc. 26-4 at 7). Shelley felt that

Harper was pressuring her and was unwilling to serve where needed. (Doc. 26-4 at

7–8).

Although Shelley testified that she considered each of the above factors in

making her decision, Shelley testified she neither knew nor cared who Harper

supported in the campaign and never spoke to White or any other person about who

Webb Elementary employees, including Harper, supported in the campaign. (Doc.

26-4 at 3). Shelley also emphasized that she had made her nonrenewal decision

before the investigation began into alleged cheating at Webb. (Doc. 26-3 at 4; Doc.

26-5 at 36). The investigation stemmed from the Board’s HR Director telling

Pitchford about anonymous allegations that cheating had occurred at Webb. (Doc.

26-3 at 3). Pitchford reported the allegations, and Haddock began to investigate.

(Doc. 26-9 at 3–4).

One week later, Pitchford went to Webb Elementary to announce the

investigation. (Doc. 26-3 at 5). Before the meeting, Pitchford met with Shelley and

asked if she had any nonrenewals, because the deadline for nonrenewals was

approaching. (Doc. 26-3 at 5). After another week had passed, Haddock and Jackson

interviewed Harper. (Doc. 26-8 at 14). During the interview, Harper told the

investigators that “during a professional development training, [Shelly’s niece]

showed teachers an exemplar and commented ‘that was on the test.’” (Doc. 26-8 at

15–16; Doc. 26-9 at 4). Defendants claim no one could have known about Harper’s

statement any earlier than this interview, a full week after Shelley had already made

her decision to nonrenew Harper. (Doc. 27 at 34–35).

STANDARD

The court will grant summary judgment when there is no genuine issue of

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

Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc). The

moving party need not produce evidence disproving the opponent’s claim; instead,

the moving party must demonstrate the absence of any genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In turn, the nonmoving party

must go beyond mere allegations to offer specific facts showing a genuine issue for

trial exists. Id. at 324. When no genuine issue of material fact exists, the court

determines whether the moving party is entitled to judgment as a matter of law. Fed.

R. Civ. P. 56(c).

DISCUSSION

The issues presented in the motion and response papers are whether Harper’s

nonrenewal was unconstitutional retaliation in violation of her First Amendment

rights. To prove a claim under Section 1983, Harper must show she was “deprived

of a federal right by a person acting under color of state law.” Griffin v. City of Opa-

Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). Harper notes that the Board is a state

agency and that the other defendants were state employees. (Doc. 1 at 1–2). She also

alleges that Defendants deprived her of her free speech and free association rights

under the First Amendment. (Doc. 1 at 7). Defendants argue that no substantial

evidence exists that Harper was nonrenewed for an unconstitutional reason and that

Defendants in fact had legitimate reasons for nonrenewing Harper. (Doc. 27 at 11).

The court finds that Defendants’ motion for summary judgment should be granted

because there is no substantial evidence that Defendants violated Harper’s free

speech and free association rights.

I. Interested Witnesses

As a preliminary matter, Harper relies on a partial-reading of Reeves v.

Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), to argue that the court

cannot consider evidence from interested witnesses. (Doc. 29 at 1); see also Kidd v.

Mando Am. Corp., 731 F.3d 1196, 1205 n.14 (11th Cir. 2013) (quoting Reeves, 530

U.S. at 151) (holding that court cannot “credit evidence favoring the moving party

unless that evidence is ‘uncontradicted and unimpeached, at least to the extent that

that evidence comes from disinterested witnesses”). Here, Harper says that almost

all the available evidence is not proper for decision on summary judgment because

it is offered by interested persons. Harper claims that, as the defendants, Pitchford,

Shelley, and White are all interested. (Doc. 29 at 2). Harper also claims that Haddock

is an interested witness as a colleague of Defendants. (Doc. 29 at 2).

The Eleventh Circuit has summarized the point Harper is trying to make in

this way: “One cannot ‘refute’ a witness’s statements using another witness’s

statements at summary judgment; such a swearing contest is one for the jury to

resolve.” Jackson v. West, 787 F.3d 1345, 1357 n.6 (11th Cir. 2015). But on a closer

reading of Reeves, the Court’s holding is more nuanced than Harper represents. The

Court explained that a district court can consider uncontradicted evidence from

interested witnesses when the party’s “burden is one of production, not

persuasion….” Reeves, 530 U.S. at 142. This difference between allowing evidence

from disinterested witnesses during production and persuasion exists because during

production there is “no credibility assessment.” Id. (quoting St. Mary’s Honor Ctr v.

Hicks, 509 U.S. 502, 509 (1993)).

In Kidd, a Title VII case, the plaintiff claimed that some witnesses were

interested. The court held that the plaintiff “ignore[d] the fact that the employer’s

burden is not one of persuasion but a burden of production, which itself ‘can involve

no credibility assessment.’” Kidd, 731 F.3d at 1205 n.14 (quoting Reeves, 530 U.S.

at 142). The court noted that preventing an employer from relying on the

uncontradicted sworn statements of its decisionmaker employees would lead to the

absurd result of completely barring the court “from considering an employer’s

legitimate, non-discriminatory reason for hiring one individual over another.” Id.

Completely barring testimony from Pitchford, Shelley, White, Haddock, and

Harper as interested parties would lead the court to the same absurd result of which

the Kidd court warned. So, the court will consider the uncontradicted statements

from each party.

Harper contradicts Defendants only on a few points, issues subject to a

“swearing contest” before a jury. Specifically, Harper claims that she did not exclude

the other third grade teacher, that she did not say that her child was more important

than her students, and that the playground incident did not happen. Harper’s version

of these facts will be taken as true. Setting aside these disputed facts, however, the

court still finds that Defendants’ motion for summary judgment should be granted.

II. First Amendment

A. Free Speech

“A government employer may not demote or discharge a public employee in

retaliation for speech protected by the First Amendment.” Alves v. Bd. of Regents of

the Univ. Sys. of Ga., 804 F.3d 1149, 1159 (11th Cir. 2015) (citing Bryson v. City of

Waycross, 888 F.2d 1562, 1565 (11th Cir. 1989). Public servants “must accept

certain limitations” on their freedoms, including those protected by the First

Amendment. Id. (quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). But that

public employee does not “relinquish the First Amendment rights [she] would

otherwise enjoy as [a citizen] to comment on matters of public interest.” Id. (quoting

Pickering v. Bd of Educ., 391 U.S. 563, 568 (1968).

The court follows a four-step analysis when evaluating public employees’ free

speech retaliation claims. Moss v. City of Pembroke Pines, 782 F.3d 613, 617–18

(11th Cir. 2015). To determine whether the First Amendment protects the

employee’s speech, the court first analyzes two questions of law. Id. at 618. First,

the court asks whether the employee spoke as a citizen on “a matter of public

concern.” Id. at 617 (quoting Carter v. City of Melbourne, 731 F.3d 1161, 1168–69

(11th Cir. 2013)). An employee who speaks pursuant to the employee’s “ordinary

job duties” is not speaking on a matter of public concern, ending any further inquiry.2

See Lane v. Franks, 573 U.S. 228, 238 (2014). This standard refers to the duty, not

the speech itself. Fernandez v. Sch. Bd. of Miami-Dade Cty, 898 F.3d 1324, 1333–

34 (11th Cir. 2018). So, speech connected to an ordinary duty, even if part of an

extraordinary event, is not subject to the First Amendment’s protection. Id.

When determining an employee’s official duties, “[t]he central inquiry is

whether the speech at issue ‘owes its existence’ to the employee’s professional

responsibilities.” Moss, 782 F.3d at 618 (quoting Garcetti, 547 U.S. at 424). For

example, in Fernandez the court found that a principal’s speech to pursue charter

school status was part of his ordinary job duties although he had never before been

a part of charter school discussions as part of his job. 898 F.3d at 1333–34. Similarly,

in Alves when some employees drafted an out-of-the-ordinary memo to report poor

leadership and management, the court noted the memo did “not bear the hallmarks

of daily activity….” 804 F.3d at 1165. The court did, however, find that the

employees wrote the memo “in the course of performing—or, more accurately, in

the course of trying to perform—their ordinary roles….” Id. at 1164–65. When

2 Before Lane v. Franks, the standard was “pursuant to the employee’s official duties” instead of

“pursuant to the employee’s ordinary job duties.” Fernandez v. Sch. Bd. of Miami-Dade Cty, 898

F.3d 1324, 1333 (11th Cir. 2018). The Eleventh Circuit noted that Lane modified the phrasing

slightly without making a substantive change. Id. So, this “did not create a substantial shift in the

law but rather, if anything, offered a slight modification and a useful clarification.” Id. (internal

quotation marks omitted).

making this determination, the court looks to relevant but non-dispositive “[f]actors

such as the employee’s job description, whether the speech occurred at the

workplace, and whether the speech concerns the subject matter of the employee’s

job….” Moss, 782 F.3d at 618.

If the employee’s speech meets that threshold, the court then weighs the

employee’s First Amendment interests against the employer’s interest in regulating

speech “to promote the efficiency of the public services it performs through its

employees.” Id. (quoting Carter, 731 F.3d at 1168–69) (internal quotation marks

omitted)). These First Amendment protections apply both outside and within the

course of an employee’s ordinary job responsibilities.

The third and fourth steps involve “questions of fact that address the causal

link between the speech and the adverse employment action.” Alves, 804 F.3d at

1159 n.4. If the First Amendment protects the employee’s speech, the employee

bears the burden of showing that his speech was a “substantial motivating factor” in

his termination. Moss, 782 F.3d at 618. Then, if the employee meets this burden, the

burden shifts to the employer “to prove that it would have terminated [the employee]

even in the absence of his speech.” Id.

Here, Harper spoke pursuant to her “ordinary job duties,” so the speech was

not protected by the First Amendment. The only reason Harper spoke about

Shelley’s niece was as part of a workplace investigation. Unlike the public testimony

in Lane v. Franks, Harper’s discussion with investigators occurred in a private

interview at her workplace and concerned test taking procedures at Webb

Elementary involving her job as a teacher. Cf. 573 U.S. at 231. Nor was the

investigation a matter of public concern. There is no evidence that the investigation

was known outside Webb Elementary or outside the school officials participating in

the investigation. Ultimately, the internal investigation did not turn up any testing

violations. So, as a legal matter, Harper’s free speech claim fails.

Even if Harper could meet the legal threshold of proving she spoke as a private

citizen on a matter of public concern, she has not provided evidence that her cheating

allegation played any role in her nonrenewal. Defendants deny that this allegation

motivated Harper’s termination. In fact, the only evidence on point shows that

Harper did not make the cheating allegation until after Defendants had decided to

nonrenew her. When asked about the timing of the nonrenewal decision, Harper

could only respond that she did not know when the decision was made. (Doc. 26-1

at 8). Moreover, Harper does not point to any comparator who was treated better or

worse than she was because of his or her statements to the investigator.

Defendants have also presented evidence that they would not have renewed

Harper anyway. Shelley felt after hearing Rice’s complaint that Harper did not show

the amount of love and care for the children that Shelley expected. Lacking sufficient

love and care is the same reason that Shelley decided not to renew another teacher

that same year. Without meaningful direct or circumstantial evidence to support

Harper’s factual position, her claim cannot survive summary judgment.

B. Free Association

Firing a government employee on the basis of political activity is generally

unconstitutional. See Ezell v. Wynn, 802 F.3d 1217, 1223 (11th Cir. 2015) (citing

Elrod v. Burns, 427 U.S. 347 (1976); Branti v. Finkel, 445 U.S. 507 (1980)). Free

association is “cut from the same cloth” as free speech and follows roughly the same

legal framework. D’Angelo v. Sch. Bd of Polk Cty, 497 F.3d 1203, 1212 (11th Cir.

2007). To prove a free association claim, the employee must show that the employee

associated as a citizen. See Moss, 782 F.3d at 618 (describing free speech standard);

D’Angelo, 497 F.3d at 1212 (holding that “associational activity by public

employees need not be on matters of public concern to be protected under the First

Amendment” but employee must still act as a citizen). If the public employee was

acting as a citizen, then the court balances the public employee’s interest in the

association against the employer’s interest in regulating association “to promote the

efficiency of the public services it performs through its employees.” See Moss, 782

F.3d at 618.

If the First Amendment protects the employee’s association, the employee

bears the burden of showing that her association was a “substantial motivating

factor” in her termination. See id. At this step, motive matters. The court’s inquiry

focuses on the government employer’s motive, even if the government employer

was mistaken about the employee’s political participation. Heffernan v. City of

Paterson, 136 S.Ct. 1412, 1418 (2016). Then, if the employee meets this burden, the

burden shifts to the employer “to prove that it would have terminated [the employee]

even in the absence” of the employee’s association. See Moss, 782 F.3d at 618.

On balance, it is almost always inappropriate for a government employer to

terminate one of its employees for political association or lack thereof. Thus,

Harper’s free association complaint passes the legal threshold.

Yet Harper’s claim fails to clear the factual hurdle. Harper has not presented

any evidence that her perceived lack of support for Swann was the cause of or even

a factor in her termination. It is undisputed at this juncture that White and Shelley

discussed Harper’s nonrenewal, as did White and Pitchford. (Doc. 26-3 at 5; Doc.

30 at 38, 40) Harper’s theory is that White may have told Shelley that Harper did

not support Swann and that Shelley may have then told Pitchford.

This theory is not supported by substantial evidence. It fails for at least two

reasons.

First, it is undisputed that Harper supported Swann, not his opponent, and

Harper admitted that she has no evidence that anyone believed otherwise. (Doc. 26-

1 at 10–11). For her part, Shelley testified she neither knew nor cared whom Harper

supported in the superintendent election. And Harper never discussed with Shelley

who she supported in the election. (Doc. 26-1 at 24). White testified that he thought

Harper supported Swann because Harper had told him she did. It is undisputed that

Harper asked White for a Swann campaign sign, which White put in Harper’s house.

(Doc. 26-1 at 10). It makes no sense for Harper to claim that she was fired for

supporting Swann’s opponent—whom she did not support—and there is no evidence

that anyone erroneously believed she did.

Second, even if there were evidence that someone erroneously thought Harper

supported Swann’s opponent or that she was insufficiently eager in her support of

Swann, there is no substantial evidence that this erroneous belief led to Harper being

nonrenewed. Harper does not point to any other person who was nonrenewed or

otherwise sanctioned for not supporting Swann or for supporting Swann’s opponent.

She also does not point to anyone who was rewarded for supporting Swann. Nor

does Harper complain that her replacement was a Swann supporter. See, e.g.,

Gossard v. JP Morgan Chase & Co., 389 F. App’x 936, 939 (11th Cir. 2010)

(“Because Plaintiff failed to present comparator evidence …, she failed to provide

‘a basis for inferring that discrimination [was] the reason for the employment

decision.’” (quoting Pace v. S. Ry. Sys., 701 F.2d 1383, 1390 (11th Cir. 1983)).

Instead, Harper’s sole basis for alleging political retaliation is her speculative

assertion that White may have told Shelley that Harper declined White’s invitation

to pass out fliers on two occasions and noticed she did not attend a rummage sale. A

plaintiff cannot survive summary judgment based on speculation. Harper’s free

association theory fails to meet the causal threshold she must clear to avoid summary

judgment.

III. Claims Against the Board

Harper’s claims against the Board fail for an additional reason. A school board

is only liable for the acts for which it is “actually responsible.” Marsh v. Butler Cty,

268 F.3d 1014, 1027 (11th Cir. 2001) (en banc), abrogated on other grounds by Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 561–53 (2007). “Respondeat superior or

vicarious liability will not attach under § 1983.” City of Canton v. Harris, 489 U.S.

378, 385 (1989) (citing Monell v. New York City Dep’t of Soc. Servs, 436 U.S. 658,

694–95 (1978)). Here, Harper seeks to hold the Board liable under the cat’s paw

theory, which is commonly used in Title VII litigation. See, e.g., Stimpson v. City of

Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999).

While the Eleventh Circuit has not yet addressed the cat’s paw theory’s place

in Section 1983 litigation, many of our sister courts have found that “the cat’s paw

theory does not apply in the § 1983 context.” Jackson v. City of Centreville, 899 F.

Supp. 2d 1209, 1222 (N.D. Ala. 2012) (quoting Files v. DeKalb Cty Sch. Dist., 2012

WL 716055, *3–4 (N.D. Ga. 2012); see also Waters v. City of Chicago, 580 F.3d

575, 586 n.2 (7th Cir. 20009) (“Imputing a nondecisionmaker’s motive to a

municipal employer sounds a lot like respondeat superior liability. Given that well

developed § 1983 municipal liability law recognizes delegation and ratification,

there seems to be little point in trying to awkwardly fit the cat’s paw concept in this

area of civil rights law.”). Rejecting the cat’s paw theory for Section 1983 litigation

supports the Supreme Court’s holding in Monell: local governments may be sued

under Section 1983 for their policies and customs—not for injuries inflicted solely

by their employees or agents. 436 U.S. at 694. The court declines Harper’s invitation

to extend cat’s paw theory liability to the Section 1983 context. And because Harper

has presented no evidence of an unconstitutional policy or custom of the Board,

Harper’s claim against the Board fails. See Craig v. Floyd Cty, 643 F.3d 1306, 1311

(11th Cir. 2011) (holding that “‘[p]roof of a single incident of unconstitutional

activity is not sufficient to impose liability against a municipality’”).

IV. Claims Against the Individual Defendants

Finally, even if Harper’s nonrenewal violated her free speech and free

association rights, Pitchford, Shelley, and White are entitled to qualified immunity.

In Harper’s complaint, she cites Lane v. Franks as clearly establishing the

unconstitutionality of retaliating against a public employee for providing

information to an investigator. (Doc. 1 at 8). Harper’s interpretation is at least one

level of abstraction too far. In Lane v. Franks, the employee testified in an open court

proceeding to fulfill a duty common to all persons called before the court. 573 U.S.

at 238. Here, in contrast, Harper made an allegation to two investigators as part of a

workplace investigation. Harper’s reading of case law regarding free association and

the cat’s paw theory suffers the same problem. (Doc. 1 at 8–9). The cases Harper

cites are not similar to Harper’s case, and the disputes between Harper and

Defendants on this point of law serve only to highlight that this question was not

beyond debate at the time Pitchford, Shelley, and White acted.

Moreover, Harper only raised this issue in her complaint, declining to respond

to Defendants’ motion for summary judgment. An issue is abandoned if the plaintiff,

after raising the issue in the complaint, fails to argue it in response to a motion for

summary judgment. Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322 (11th Cir.

2001). It is an “unremarkable proposition that assertions made in the pleadings …,

but not made in opposition to a motion for summary judgment, need not be

considered by the district court … in ruling on the motion for summary judgment.”

Brasseler, U.S.A. I, L.P. v. Stryker Sales Corp., 182 F.3d 888, 892 (11th Cir. 1999).

Here, Harper did not dispute that Pitchford, Shelley, and White were

performing discretionary functions and that their actions did not violate clearly

established law. Harper has not presented any convincing precedent to suggest that

a reasonable school official would have known nonrenewing Harper in this situation

would be unconstitutional. Thus, even if Harper’s claims had merit, Pitchford,

Shelley, and White would be entitled to qualified immunity.

CONCLUSION

Based on the above reasoning, Defendants’ Motion for Summary Judgment is

GRANTED.

DONE and ORDERED this 12th day of July 2019.

/s/ Andrew L. Brasher

ANDREW L. BRASHER

UNITED STATES DISTRICT JUDGE