Grant v. Elmore County Board of Education (CONSENT)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

FAGALE S. GRANT, )

)

Plaintiff, )

)

v. ) CASE NO. 2:19-cv-58-JTA

)

ELMORE COUNTY BOARD ) (WO)

OF EDUCATION, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Fagale S. Grant filed this employment discrimination action alleging the

Elmore County Board of Education and the Superintendent of Education for Elmore

County discriminated against her based upon race, disability, and age. The parties have

consented to the exercise of dispositive jurisdiction by a magistrate judge pursuant to 28

U.S.C. § 636(c). (Docs. No. 19, 20.)

This matter is before the Court on Defendants’ Joint Motion for Summary Judgment

with supporting brief and evidentiary submissions (Docs. No. 50, 51, 52), Plaintiff’s

responsive brief in support with evidentiary submissions (Doc. No. 57), and Defendants’

reply thereto (Doc. No. 58). The motion is ripe for review.

After careful review, the Court concludes that the motion for summary judgment is

due to be GRANTED.

I. SUMMARY JUDGMENT STANDARD

Under Federal Rule of Civil Procedure 56, summary judgment is appropriate if a

moving party “shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A material fact is one

“that might affect the outcome of the suit under the governing law.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a material fact is genuine if “the

evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

The moving party “has the burden of either negating an essential element of the nonmoving

party’s case or showing that there is no evidence to prove a fact necessary to the nonmoving

party’s case.” McGee v. Sentinel Offender Servs., LLC, 719 F.3d 1236, 1242 (11th Cir.

2013).

If the moving party meets its burden, the nonmoving party must then “go beyond

the pleadings and by her own affidavits, or by the depositions, answers to interrogatories,

and admissions on file, designate specific facts showing that there is a genuine issue for

trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotations omitted).

Factual assertions must cite to specific materials in the record, including affidavits,

depositions, declarations, and interrogatory answers. Fed. R. Civ. P. 56(c). Unsupported

conclusions and factual allegations are insufficient to create a genuine issue of material

fact. Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005). Also insufficient are

allegations based on speculation. Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1181 (11th

Cir. 2005). See also Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1996)

(“[U]nsubstantiated assertions alone are not enough to withstand a motion for summary

judgment.”). Finally, “the mere existence of some alleged factual dispute between the

parties will not defeat an otherwise properly supported motion for summary judgment; the

requirement is that there be no genuine issue of material fact.” Anderson, 477 U.S. at 247–

248. In reviewing a motion for summary judgment, a court must “view the evidence in the

light most favorable to the non-moving party and resolve all reasonable doubts about the

facts in favor of the non-movant.” Kroma Makeup EU, LLC v. Boldface Licensing +

Branding, Inc., 920 F.3d 704, 707 (11th Cir. 2019).

II. FACTUAL BACKGROUND1 AND PROCEDURAL HISTORY

A. Grant’s Employment

Grant, an African American female, was hired as an art teacher at Wetumpka High

School in Elmore County, Alabama in 1997. (Doc. No. 51-30 at 2.) During the second

semester of each school year, the superintendent of the Elmore County Public Schools

District sends a memorandum to all county teachers to inquire whether they intend to

resign, retire or return to teaching the following school year. Grant understood that the

school district needed to know which employees were returning the following year for

1 The Court has determined the facts, which are undisputed unless otherwise noted, based on the

parties’ submissions, including Grant’s deposition transcript excerpts and exhibits thereto (Doc.

No. 51-1; Doc. No. 57-4; Doc. No. 57-5; Doc. No. 57-7; Doc. No. 57-9; Doc. No. 57-10; Doc. No.

57-11); Grant’s Affidavit and attachments (Doc. No. 57-2); Richard Dennis’ deposition transcript

excerpts (Doc. No. 51-18); Richard Dennis’ Affidavit and exhibits thereto (Docs. No. 51-32

through 51-36); Dana James’ deposition transcript excerpts and exhibits thereto (Docs. No. 51-20

through 51-27; Doc. No. 57-8); Dana James’ Affidavit (Doc. No. 51-44); Robert Slater’s

deposition transcript (Doc. No. 51-19); Robert Slater’s Affidavit (Doc. No. 51-46); and exhibit to

deposition of Elmore County School Board President Michael Morgan (Doc. No. 51-30 at 2). As

it must when ruling on a motion for summary judgment, this Court views this evidence in the light

most favorable to Grant, the non-movant, and draws all justifiable inferences in her favor.

Anderson, 477 U.S. at 255.

planning purposes. (Doc. No. 51-1 at 45.) From 1998 through 2006, Grant responded that

she planned to continue teaching. (Doc. No. 51-51 at 12-20.) In February 2007, she

responded that she would resign before the 2007-2008 school year. (Id. at 11.) However,

on May 22, 2007, Grant submitted a letter informing the School District that she would not

be resigning and that she was “recanting [her] intention form.” (Doc. No. 51-50; Doc. No.

51-1 at 13-14, 47-48.) Grant explained that in May 2007, Assistant Superintendent James

Myers called to ask if she still intended to resign as stated in her February notice. (Doc.

No. 51-1 at 47-48.) Thus, Myers’ inquiry prompted Grant to write the letter rescinding her

resignation. (Id.)

Between 2008 and 2016, Grant consistently informed the district that she would

return for the following year. (Doc. No. 51-51 at 2-10.) On February 7, 2017, Grant

signaled that she would not return for the next school year by checking the option indicating

“I plan to retire at the end of the 2016-2017 school year.” (Id. at 1.) The memorandum

instructed the teachers to attach a letter if they selected the retirement option. (Id.) On

February 8, Grant wrote a letter affirming her “plan” to retire at the end of the 2016-17

school year. (Doc. No. 51-5.)

Superintendent Richard Dennis (“Dennis”) explained that when his office receives

word that an employee intends to retire, that person’s name is submitted to the Elmore

County Board of Education (the “Board”) for approval, after which the superintendent

advertises and fills the vacated slot as soon as possible. (Doc. No. 51-18 at 10-11.) Grant’s

name was among several candidates for retirement listed on a Personnel Action Sheet for

the Board’s approval during its meeting of March 27, 2017.2 (Id. at 11; Doc. No. 51-35.)

According to Dennis, his office does not notify employees that their names would be placed

on the Board’s agenda for personnel actions and Grant’s name was submitted to the Board

because she submitted a letter to its human resources department. (Doc. No. 51-18 at 13-

14.) The minutes from the Board’s March meeting show that it approved the

superintendent’s recommendation on all proposed personnel actions. (Doc. No. 51-7 at 2.)

The Personnel Action Sheet listed Grant’s effective retirement date as May 26, 2017. (Id.)

Once the Board approved the Personnel Action Sheet, its Payroll Coordinator Dana James

(“James”) entered the information for each retiree into a database maintained by the

Teachers’ Retirement System of Alabama (“RSA”). (Doc. No. 51-44 at ¶¶ 2-3; Doc. No.

51-20 at 15.) James recalled entering Grant into the RSA portal as voluntarily terminated

with an effective date of May 26, 2017. (Doc. No. 51-20 at 13, 15-16.) She noted that

some retirees disfavor the word “terminate,” but in distinguishing between “termination of

employment” and “termination of benefits,” James explained that the latter context was the

operative one for purposes of providing retirement information to RSA. (Id. at 13.)

On March 29, 2017, two days after the Board approved Grant’s retirement, James

emailed Grant to ask whether her retirement paperwork had been submitted. (Doc. No. 51-

22.) On March 31, Grant submitted her application for retirement with an effective date of

June 1, 2017 and James forwarded the material to RSA on or about April 3. (Doc. No. 51-

44 at ¶ 4; Doc. No. 51-1 at 44; Doc. No. 51-6.) The RSA form offered two options for

2 Grant was one of nineteen retiring employees listed. Grant and six other employees were

African-American and twelve were Caucasian. (Doc. No. 51-35.)

retirement – service or disability, which required the submission of a Report of Disability

packet. (Doc. No. 51-6.) Grant’s application had an “x” in the box next to service

retirement.3 (Id.) On April 7, David Seal of RSA emailed James to inform her that Grant,

at 61 years of age, lacked the age and time in service to qualify for service retirement and

that disability retirement was her only option. (Doc. No. 51-23.) On April 10, Amy Crews

(“Crews”), an RSA retirement counselor, sent Grant a letter informing her that her request

for disability retirement could not be processed without a Physician’s Report of Disability.4

(Doc. No. 51-8.) Crews attached the necessary form to the letter and explained that unless

it was completed and received or postmarked by May 2, 2017, Grant’s effective date of

retirement, June 1, would be delayed. (Id.)

On May 5, 2017, Crews sent another letter informing Grant that her failure to

respond to the previous request for documentation meant that her earliest retirement date

was now July 1, 2017. (Doc. No. 51-9.) Crews also conditioned the July retirement date

upon RSA’s receipt of the Physician’s Report of Disability by June 1. (Id.) Dr. John

Jernigan completed a disability form for Grant on April 28. (Doc. No. 51-15 at 8-9.) Dr.

Jernigan wrote that reasonable accommodations were possible for Grant to continue

3 James testified that she did not mark “Service Retirement” on Grant’s application and that to the

best of her recollection, that box was already checked when she received the form. (Doc. No. 51-

20 at 14.) James also did not discuss Grant’s application with any other person in her office,

including Superintendent Dennis. (Id. at 10.) According to James, her office does not provide

assistance or counseling in the retirement application process, as their function is limited to

completing an employer certification and inputting the retiring employee’s information into the

RSA portal. (Id. at 15, 17.)

4 Crews copied James at the Elmore County Board of Education on all of her letters to Grant.

working and that she was not totally incapacitated for further performance of her job duties.

(Id. at 8, 9.) Crews received Jernigan’s medical assessment on May 18 and wrote Grant

on May 19 to inform her that, according to Dr. Jernigan, she was neither permanently

disabled nor totally incapacitated to perform her job duties. (Doc. No. 51-10.) Crews

provided Grant with another Physician’s Report of Disability with instructions to return it

to RSA within thirty (30) days. (Id.) On June 8, Crews wrote Grant to say that her failure

to meet RSA’s deadlines for documentation meant that she needed to resubmit her

retirement application and another Physician’s Report of Disability between 30 and ninety

days prior to her effective date of retirement. (Doc. No. 51-11.)

On June 17, 2017, Dr. Jernigan completed a second Physician’s Report of Disability

based upon his examination of Grant on May 17. (Doc. No. 51-53.) Dr. Jernigan did not

provide an opinion on whether Grant was totally incapacitated for further job duties, rather,

he indicated that no reasonable accommodation could be made to enable her to continue

teaching. (Id. at 1, 2.) On July 5, James emailed Crews to clarify that Grant was not on a

leave of absence and was “just terminated.”5 (Doc. No. 51-24.) James added “I have tried

and tried to explain this to her but she doesn’t get it.” (Id.) That same day, Crews wrote

Grant to acknowledge receipt of Jernigan’s second medical opinion on June 22. (Doc. No.

51-12.) The letter explained that Grant was ineligible for retirement because she was not

5 James testified that this email was likely in response to a telephonic inquiry from Crews regarding

Grant’s status. (Doc. No. 57-8 at 45-46.) She explained that if Grant were on a leave of absence,

her application could have been processed by RSA. (Id. at 48-49.) James recalled alerting Slater

to the difference such status would have had on Grant’s disability application and that he should

“make sure that [Grant] realize[d]” that, given the delays in her paperwork, “she could not get

disability retirement if she was not on a leave of absence.” (Id. at 51.)

on a leave of absence and had “terminated employment with Elmore County Schools.”

(Id.) Crews also informed Grant that if she met the in-service requirements for disability

retirement she could reapply. (Id.)

On July 26, 2017, Grant sent an email and letter to James. (Doc. No. 51-25; Doc.

No. 51-26.) Each stated that she learned from Crews on that date that she was no longer

employed by the Elmore County Schools. (Id.) She asked that her termination be rescinded

so that RSA could process her retirement application. (Id.)

Although Grant conditioned her retirement on approval of her disability application

by RSA, she did not make that contingency known to anyone at the Board. (Doc. No. 51-

1 at 32; Doc. No. 57-5 at 2.) She recalled that in early May, Dr. Robert Slater (“Slater”),

principal at Wetumpka High School, came to her classroom and told her that the Board

was going to have a call meeting and he needed to know her intentions for the next year.

(Doc. No. 57-7.) Grant told him that she planned to retire on disability and Slater said to

her “well, why don’t you just resign.”6 (Id.) Grant stated that a friend who attended all

Board meetings told her in May 2017 that the Board approved her retirement during its

meeting that month. (Doc. No. 51-1 at 20-21.) Once Grant learned from her friend that

6 Grant places this conversation alternatively “around the first of May” (Doc. No. 57-7) or on May

8 (Doc. No. 51-1 at 32). Slater says that he would have had a conversation with Grant, as opposed

to a meeting, regarding her form submission “closer to the time of turning the form in.” (Doc. No.

51-19 at 10.) He does not recall suggesting that she resign or asking if she was “really leaving” at

any time. (Id.) Slater explained that he would not have needed information from Grant regarding

her retirement plan in May of 2017 because the Board approved her retirement at its March 2017

meeting. (Doc. No. 51-46 at ¶ 9.) Slater also testified that while he knew Grant was applying for

disability retirement, it was not his understanding that her retirement was conditioned upon the

approval of her disability application by RSA. (Doc. No. 51-19 at 13-14.)

her retirement was approved by the Board, she began to wait for RSA to process her

paperwork and for her physician’s forms to be completed and submitted. (Id. at 21.)

Despite regarding her retirement as contingent upon approval of her disabled status

and Dr. Jernigan’s opinion in April 2017 that she was able to work, Grant never

communicated to anyone at the Board that she desired to rescind her retirement notices.

(Id. at 33-35.) Grant did not believe she needed to inform anyone at the Board that she

wanted to remain on its payroll because James had been copied on all of Crews’ letters and

therefore, the Board knew that her disability application was unsuccessful. (Id. at 34.)

After receiving Crews’ letter of July 5, she did not reach out to the Board to attempt to

reverse its approval of her retirement or in some way appeal its vote approving her

retirement. (Id. at 40-41.)

Grant did not seek employment with the Elmore County Board of Education or any

other public school system so that she could become eligible for disability retirement. (Id.

at 37.) In fact, Grant stated that she expected James or someone at the Board to contact

her regarding the rescission of her notice of retirement, as Assistant Superintendent Myers

had done in 2007. (Id. at 47-48.) While she acknowledged that her original plan was to

retire at the end of the 2016-2017 school year, her plan changed because her retirement

was contingent upon “if and when [her] disability went through.” (Doc. No. 57-5 at 1-2.)

Grant viewed her February notice as “only a statement of intent of plan to retire at the end

of the 2016-2017 school year and not an unequivocal statement of immediate voluntary

retirement and or resignation.” (Doc. No. 57-2 at ¶ 4.) According to Grant, she did not

submit an affirmative resignation letter to the Board and thus believes that she was fired.

(Id. at ¶ 5; Doc. No. 51-1 at 8, 23, 37, 43.) In her own words, her claim for disability is

based upon being “fired, terminated, before [her] papers were processed after serving for

20 years.” (Id. at 23.)

On or around June 1, 2017, when Grant was at Wetumpka High School to finish

cleaning out her classroom, she met the new art teacher who was hired in anticipation of

her departure. (Doc. No. 51-1 at 16, 28.) Grant observed that the new teacher was

Caucasian but denied that her replacement was a “substantially younger person.” (Id. at

28.)

B. EEOC Charge

Grant filed a charge letter with the Equal Employment Opportunity Commission

(“EEOC”) on November 10, 2017. (Doc. No. 51-16.) Her complaint alleged

discrimination and retaliation based upon race, sex, age, and disability. (Id. at 1.) By letter

dated October 15, 2018, the EEOC notified Grant that it was unable to conclude that the

Board discriminated against her, and that she had ninety days from receipt of the notice to

file a federal or state lawsuit related to her claims. (Doc. No. 51-17 at 1.)

Grant stated during her deposition that she did not know when she received the

EEOC notice in the mail. (Doc. No. 51-1 at 39.) She later attested for purposes of her

response to the motion for summary judgment that she received the EEOC Dismissal and

Rights letter in the mail on October 20, 2021.7 (Doc. No. 57-2 at ¶ 2.)

7 Grant’s affidavit attaches a printout of her October 24, 2018 email to her attorney informing him

that she received the EEOC letter on October 20 and would like to discuss the matter with him.

(Doc. No. 57-2 at 3.) Defendants assert that Grant did not produce this email in discovery.

C. Complaint

On January 17, 2019, Grant filed an eight-count Complaint alleging racial

discrimination and retaliation against her by the Board and its members in their official and

individual capacities, as well as Superintendent Dennis in his official and individual

capacities (collectively “Defendants”).8 (Doc. No. 1 at ¶¶ 7-15.) Count One of the

Complaint alleges racial discrimination by the Board in violation of Title VII of the Civil

Rights Act of 1964, as amended (42 U.S.C. § 2000e, et seq.), due to Grant’s termination.

(Id. at ¶¶ 48-55.) Count Two alleges discrimination by the Board on the basis of Grant’s

disabilities, i.e., bursitis, hypertension, diabetes, osteoarthritis, anxiety, and depression, due

to Grant’s termination, in violation of the Americans with Disabilities Act (the “ADA”),

42 U.S.C. § 12101, et seq. (Id. at ¶¶ 57-72.) Count Three alleges disability discrimination

by the Board due to Grant’s termination, in violation of the Rehabilitation Act of 1973, 29

U.S.C. § 710, et seq. (Id. at ¶¶ 73-78.) Count Four alleges age discrimination by the Board

due to Grant’s termination, in violation of the Age Discrimination in Employment Act (the

“ADEA”), 29 U.S.C. § 621, et seq. (Id. at ¶¶ 79-85.) Count Five alleges that Grant’s

termination was intentional race discrimination by all defendants, in violation of 42 U.S.C.

§ 1981. (Id. at ¶¶ 86-98.) Count Six alleges that all individual defendants acted under

color of state law to deprive Grant of her opportunity to be heard, in violation of her right

to petition the government for the redress of grievances, and that such violation is

actionable under the First Amendment to the United States Constitution through 42 U.S.C.

8 The Board members are Dale Bain, David Jones, Leisa Finley, Wendell Saxon, Michael Morgan,

Kitty Graham and Joel Holley. (Doc. No. 1 at ¶¶ 9-15.)

§ 1983. (Id. at ¶¶ 99-106.) Count Seven alleges that all individual defendants violated the

Due Process Clause of the Fourteenth Amendment to the United States Constitution by

depriving Grant of notice and an opportunity to be heard prior to her termination, and that

such violation is actionable through 42 U.S.C. § 1983. (Id. at ¶¶ 107-121.) Count Eight

alleges that all individual defendants violated the Equal Protection Clause of the Fourteenth

Amendment by treating Grant differently than similarly situated White employees of the

Board, and that such violation is actionable through 42 U.S.C. § 1983. (Id. at ¶¶ 122-129.)

Grant seeks the following relief:

1. A declaratory judgment that Defendants violated her rights under the First

and Fourteenth Amendments to the United States Constitution, 42 U.S.C.

§§ 1981 and 1983, Title VII of the Civil Rights Act of 1964, as amended,

the ADA and the Rehabilitation Act;

2. An order enjoining Defendants and all persons acting in concert with

them from engaging in discriminatory employment practices on the basis

of race and retaliation;

3. A preliminary injunction and permanent injunction enjoining Defendants,

and those acting in concert with them and at their request, from

continuing to violate Title VII;

4. An order requiring Defendants to make Grant whole by immediately

reinstating her to her previous position of employment with the Board,

which she would have had in the absence of discrimination based upon

her race, disability, age, and constitutional rights, back pay (plus interest),

front pay, declaratory and injunctive relief, liquidated damages,

compensatory and punitive damages, lost seniority, lost healthcare and

other fringe benefits, lost retirement, and non-probationary status under

applicable Alabama law; and

5. Other such relief and benefits including, but not limited to, costs,

attorney’s fees, and expenses.

(Id. at 21-22.)

D. Motion for Summary Judgment

Defendants filed a Joint Motion for Summary Judgment on all claims.9 (Doc. No.

50.) Their brief in support argues that Grant’s claims under Title VII (Count One) and the

ADEA (Count Four) are untimely and due to be dismissed due to her failure to file this

action within ninety days of her receipt of the EEOC’s Notice of Rights letter. (Doc. No.

52 at 23-25.) Defendants also contend that Grant cannot establish a prima facie case of

race discrimination for purposes of Title VII, § 1981, or § 1983 as alleged in Counts One,

Five and Eight (id. at 25-33), or a prima facie case of age discrimination under the ADEA

as alleged in Count Four (id. at 41-44). Beyond these substantive issues of liability,

Defendants argue that the official capacity claims against the individual defendants are due

to be dismissed as duplicative and, because they enjoy the protection of the qualified

immunity doctrine, they are entitled to summary judgment in their individual capacities.

(Id. at 57-64.)

Grant responds that her claims under Title VII and the ADEA were timely filed

based upon the date she received the EEOC Notice of Rights. (Doc. No. 57-1 at 9.) She

submits that she has established a prima facie case for race discrimination under Title VII

(id. at 10-12) and age discrimination (id. at 16). In support of her prima facie case, Grant

submits that she suffered an adverse employment action when she was terminated and that

9 Grant’s Response in Opposition to Defendant’s Motion for Summary Judgment concedes that no

genuine issue of material fact exists as to Counts Two, Three, Six and Seven, and that Defendants

are entitled to summary judgment on those claims. (Doc. No. 57-1 at 17.) For purposes of brevity,

the Court will limit its discussion to the remaining allegations of racial discrimination in Counts

One, Five and Eight, and age discrimination in Count Four.

she was treated less favorably than similarly situated employees outside of her protected

class. (Id. at 11-12.) Grant rejects Defendants’ argument that her employment was

terminated for legitimate and nondiscriminatory reasons and argues that, because she has

demonstrated pretext, her case presents issues of material fact that can only be decided at

trial. (Id. at 12-16.) Further, Grant rejects Defendants’ claim of qualified immunity as to

the § 1983 claim, arguing that the doctrine should not apply to cases of race discrimination

which violate clearly established law because the doctrine exists to allow government

officials to make difficult decisions in areas of legal uncertainty. (Id. at 17.)

Grant’s Response does not include argument in support of her claims under 42

U.S.C. §§ 1981 and 1983. While Defendants ask the court to consider these claims

abandoned, they note the Eleventh Circuit applies the same elements of proof to claims of

employment discrimination under Title VII and §§ 1981/1983. (Doc. No. 58 at 5, n.3

(citing Rodemaker v. Shumphard, 859 F. App’x 450, 451-52 (11th Cir. 2021).) Because

the analysis for these claims are the same, the Court’s evaluation of Grant’s Title VII claim

will also apply to her §§ 1981 and 1983 claims which she did not address.

III. JURISDICTION AND VENUE

This Court exercises subject matter jurisdiction over this lawsuit pursuant to 28

U.S.C. § 1331, 28 U.S.C. § 1343, and 42 U.S.C. § 2000e-5(f)(3). The parties do not contest

personal jurisdiction or venue, and the Court finds sufficient allegations to support both in

the Middle District of Alabama.

IV. DISCUSSION

A. Motion for Summary Judgment

Title VII of the Civil Rights Act of 1964, as amended, prohibits employers from

“discriminat[ing] against any individual with respect to [her] compensation, terms,

conditions, or privileges of employment, because of such individual’s race.” 42 U.S.C. §

2000e-2(a)(1). Section 1981 similarly prohibits intentional discrimination based on race

in the employment context. See 42 U.S.C. § 1981(a); Ferrill v. Parker Grp., Inc., 168 F.3d

468, 472 (11th Cir. 1999). Section 1983, which provides a private cause of action against

a state actor who violates federal constitutional or statutory rights, provides the exclusive

remedy for a violation of § 1981 by a state actor.10 See 42 U.S.C. § 1983. See Bryant v.

Jones, 575 F.3d 1281, 1288 n.1 (11th Cir. 2009) (“[Section] 1981 does not provide [a]

cause of action against state actors; therefore, § 1983 constitutes the exclusive federal

remedy for violation by state actors of the rights guaranteed under § 1981.”).

“Both [Title VII and § 1981] have the same requirements of proof and use the same

analytical framework.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir.

1998), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.

53 (2006). Hence, “the analysis of disparate treatment claims under § 1983 is identical to

the analysis under Title VII where the facts on which the claims rely are the same.

10 Defendants do not dispute that they are state actors for purposes of § 1983. (Doc. No. 52 at 56.)

They do condition liability under § 1983 on a plaintiff’s showing that either (1) an official policy

or (2) an unofficial custom or practice caused the harm complained of. (Id. (citing Grech v.

Clayton Cnty., Ga., 335 F.3d 1326, 1329-30 (11th Cir. 2003)).)

Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008) (citing Abel v. Dudderly, 210 F.3d

1334, 1338 (11th Cir. 2000)); see also Stallworth v. Shuler, 777 F.2d 1431, 1433 (11th Cir.

1985) (“Where, as here, a plaintiff predicates liability under Title VII on disparate

treatment and also claims liability under sections 1981 and 1983, the legal elements of the

claims are identical.”).11

1. Framework and Analysis for Title VII Disparate Treatment and §

1983 Racial Discrimination Claims

“In order to survive summary judgment, a plaintiff alleging intentional

discrimination must present sufficient facts to permit a jury to rule in her favor.” Lewis v.

City of Union City, Georgia, 918 F.3d 1213, 1220-21 (11th Cir. 2019). “A plaintiff may

prove race discrimination through either direct or indirect evidence.” Chapter 7 Trustee v.

Gate Gourmet, Inc., 683 F.3d 1249, 1257 (11th Cir. 2012) (citing Crawford v. Carroll, 529

F.3d 961, 975-76 (11th Cir. 2008)). Absent direct evidence, “[c]ourts assess circumstantial

evidence of discrimination through the three-part burden-shifting framework set out in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Burke-Fowler v. Orange Cty.,

447 F.3d 1319, 1323 (11th Cir. 2006). Under the framework established for Title VII race

discrimination claims, “the plaintiff bears the initial burden of establishing a prima facie

11 Generally, courts use the same legal framework to analyze employment discrimination claims

under Title VII, § 1981, and § 1983, but the Supreme Court has held recently that a plaintiff in a §

1983 action for a violation of § 1981 must “initially plead and ultimately prove that, but for race,

[she] would not have suffered the loss of a legally protected right.” Comcast Corp. v. Nat’l Ass’n

of Afr. Am.-Owned Media, __ U.S. __, 140 S. Ct. 1009, 1019, 206 L. Ed. 2d 356 (2020);

Rodemaker v. Shumphard, 859 F. App’x at 451-52. Grant has not carried her burden in this case

due to a failure to show sufficient evidence to prove that race was a but-for cause of her

termination.

case of intentional discrimination by showing (1) that she belongs to a protected class, (2)

that she was subjected to an adverse employment action, (3) that she was qualified to

perform the job in question, and (4) that her employer treated ‘similarly situated’

employees outside her class more favorably.” Lewis, 918 F.3d at 1220-21; Tamba v. Publix

Super Mkt., 836 F. App’x 765, 771 (11th Cir. 2020) (applying McDonnell Douglas

framework to racial discrimination claims under Title VII and § 1981); Abbes v. Embraer

Services, Inc., 195 F. App’x 898, 900 (11th Cir. 2006) (citing Knight v. Baptist Hosp. of

Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003)). When a plaintiff makes her prima

facie case of discrimination, a presumption of unlawful discrimination is created, but “the

employer can rebut that presumption by articulating one or more legitimate non-

discriminatory reasons for its action.” Alvarez v. Royal Atl. Developers, Inc., 610 F.3d

1253, 1264 (11th Cir. 2010). If the defendant proffers a non-discriminatory reason, the

burden returns to the plaintiff, who must show that the proffered reason is pretextual. Id.

Defendants assert that Grant has not established a prima facie case of discrimination

under Title VII because she has not shown an adverse action or favorable treatment of a

comparable employee. (Doc. No. 52 at 27-32; Doc. No. 58 at 6-10.) The Court agrees.

a. Because Grant initiated her retirement, she did not suffer an

adverse employment action.

“A plaintiff establishes a prima facie case of disparate treatment by showing that

she was a qualified member of a protected class and was subjected to an adverse

employment action in contrast with similarly situated employees outside the protected

class.” Arrington v. Ala. Power Co., 769 F. App’x 741, 747 (11th Cir. 2019) (quoting

Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004)); Tamba, 836 F.

App’x at 771. This means that Grant must “establish an ‘adverse employment action’ by

proving that a decision of the employer ‘impact[ed] the terms, conditions, or privileges of

[her] job in a real and demonstrable way.’ ” Jefferson, 891 F.3d at 920-21 (quoting Davis

v. Town of Lake Park, 245 F.3d 1232, 1239 (11th Cir. 2001), overruled on other grounds

by Burlington Northern v. White, 548 U.S. 53 (2006)). Here, Grant has not shown that any

decision by the defendants caused “a serious and material change in terms, conditions, or

privileges” of her employment. Jefferson, 891 F.3d at 921. The Court addresses the

evidence on whether Grant suffered an adverse employment action below.

Grant contends that she was fired. (Doc. No. 51-1 at 8, 23, 37, 43.) However, the

record shows that Grant set in motion the events which resulted in her retirement.12 Grant

understood that the annual memorandum from the school superintendent asking Elmore

County teachers whether they would return the following school year enabled the system

to identify upcoming vacancies, advertise those positions, and hire as needed. (Doc. No.

51-1 at 45.) Her February 7 response to the superintendent’s 2017 canvas indicated that

she would retire and on the following day, February 8, she provided the requested letter

that affirmed her choice as indicated on the memorandum. (Docs. No. 51-4, 51-5.) While

Grant’s testimony and affidavits make clear that she conditioned her retirement upon

12 Defendants dispute that Grant was “terminated.” Their Supplemental Responses to Grant’s

interrogatories make a distinction between termination and the retirement initiated by her

communications of February 7 and 8 which informed the Board that she intended to retire. (Doc.

No. 51-30 at 2.) Testimony from James supports Defendants’ hesitation to use the word

“terminate” in relation to Grant’s retirement. (Doc. No. 51-20 at 13, 15-16.)

RSA’s approval of disability retirement, she admits that she did not communicate that

contingency to Slater, Dennis, or the Board. (Doc. No. 51-1 at 32.) Grant’s argument that

her memo response and accompanying letter merely informed Dennis and human resources

that she only “planned” to retire is unavailing. This is so because Grant knew that the

school system used the teacher responses to plan teaching needs for the upcoming year.

Grant also knew from past experience, i.e., the rescission of her 2007 retirement notice,

that it was incumbent upon her to take some action to continue her employment with the

Board. (Doc. No. 51-1 at 45, 47-48.) The fact that Grant took the action necessary to keep

her job in 2007 demonstrated her awareness that some affirmative, corrective action was

required to remain employed by the Board.

Grant also asserts that she expected to be contacted by someone at the Board toward

the end of the school year to confirm that it was still her plan to retire, as Assistant

Superintendent Myers had done in 2007. (Doc. No. 51-1 at 47-48.) The record shows

however, that expectation was not consistent with the Board’s retirement process in 2017.

Dennis testified that it was the Board’s custom and practice to act upon teachers’ notices

of resignation or retirement, with no additional communication, by placing the names of

persons giving notice of retirement or resignation before the Board for personnel action.

(Doc. No. 51-18 at 13-14.) In 2017, those names were put before the Board on March 27

for approval. (Id. at 10; Doc. No. 51-32 at ¶ 8.) On March 29, James contacted Grant

regarding the submission of her retirement package to RSA. (Doc. No. 51-22.) Grant

provided the requested package to James on March 31. (Doc. No. 51-44 at ¶ 4.) By the

time she received Crews’ letter of May 5, Grant was aware that her earliest effective

retirement date was July 1. (Doc. No. 51-9.) Also, as of May 5, her physician rated her

able to work. (Doc. No. 51-52.)

Whether Grant’s need for continued employment could have been accommodated

by the Board is not before the Court because Grant did not try to prolong her employment

after submitting her intent form and letter in February. The Eleventh Circuit assesses the

voluntariness of an employee’s resignation by evaluating (1) whether the employee was

given some alternative to resignation; (2) whether the employee understood the nature of

the choice she was given; (3) whether the employee was given a reasonable time in which

to choose; (4) whether the employee was permitted to select the effective date of the

resignation; and (5) whether the employee had the advice of counsel. Hargray v. City of

Hallandale, 57 F.3d 1560, 1568 (11th Cir. 1995). The facts underlying Grant’s retirement

from Wetumpka High School support a finding that her submission of the intent form was

voluntary and, given her prior intent to resign in 2007, she understood the nature of her

choices as she was aware that she would be removed from the payroll absent a rescission.

Further, as a long time school employee, she knew that the school gathered information on

its needs for the following year in February. Considering the totality of the circumstances,

the Hargray factors lead the Court to find Grant’s separation from employment was the

natural result of her own action and did not constitute an adverse employment action.

b. Grant has not identified a comparable employee who was treated

more favorably.

Even if Grant could identify an adverse action, she has not established a prima facie

case of race discrimination due to a lack of similarly situated comparators. Flowers v.

Troup Cty., Ga. Sch. Dist., 803 F.3d 1327, 1340 (11th Cir. 2015). Grant does not identify

a comparable employee who was treated more favorably than she for purposes of her prima

facie case. (Doc. No. 57-1 at 12.) Defendants submit, and the Court agrees, that a true

comparator employee would be one who gave a notice of intent to retire and was then

removed from the Board’s payroll before RSA processed that employee’s application.

(Doc. No. 52 at 33; Doc. No. 58 at 10-11.) Grant’s own testimony suggests these are the

characteristics of an appropriate comparator, as she stated “[m]y claim . . . is that I was

fired, terminated, before my papers were processed . . . .” (Doc. No. 51-1 at 23.)

An employee “must prove that he and his comparators are ‘similarly situated in all

material respects.’ ” Tamba, 836 F. App’x at 771. Additionally, the employee and

comparator “must have been engaged in the same basic conduct and subjected to the same

work rules.” Id. Here, Grant asks the court to consider the testimony of James regarding

inconsistencies between statements by Slater and James.13 (Doc. No. 57-1 at 14.) Because

James had knowledge of Grant’s insufficient medical documentation and rapidly shrinking

timeframe to qualify for disability retirement while still employed by the Board (due to

having been copied on Crews’ letters to Grant), she asked Slater to warn Grant that her

window for disability retirement was shrinking. (Doc. No. 57-8 at 51.) Slater told James

that he was confident that Grant intended to retire no matter the circumstances and did not

act upon James’ suggestion. (Id.) Slater’s recollection of his interactions with Grant on

13 Although Grant submits James’ conversation with Slater to indicate inconsistencies for purposes

of demonstrating pretext, the Court believes it is useful in showing that Grant has not identified a

comparable employee for purposes of her prima facie case.

the issue of her retirement corroborate James’ account, as he testified that Grant “made it

clear that she was going to get [her disability retirement] done at the end of the year.” (Doc.

No. 51-19 at 14.) Further, Grant confirmed that Slater would not have known that her

retirement was conditioned upon the outcome of her disability application. (Doc. No. 51-

1 at 32.) Apparently, James’ position as Payroll Supervisor at the Board put her in a

position to know whether problems arose in any retiring employee’s application to RSA.

James provided no evidence, however, that other employees encountered difficulty in the

RSA application process but were kept on the Board’s payroll while Grant was not.

Superintendent Dennis was unequivocal in his position that employees who submit

retirement notices to the Board’s human resources department do not receive any additional

notice regarding the processing of their retirement. (Doc. No. 51-18 at 14.) James also

stated that it is not her job to provide advice on issues concerning retirement. (Doc. No.

51-20 at 17.)

Because there is no evidence in the record which shows that another potential retiree

was contacted after submitting their notices or kept on the payroll while Grant was not, the

Court finds that she has not established a similarly situated employee outside of her

protected class for purposes of meeting the second prima facie element of her Title VII

claim. Accordingly, in consideration of all the evidence before the Court, viewed in the

light most favorable to Grant, the Court concludes that Defendants’ motion for summary

judgment is due to be granted as to Grant’s claims of race discrimination.14

14 As discussed above, this outcome as to Grant’s Title VII claim also applies to her claims of

racial discrimination under 42 U.S.C. §§ 1981 and 1983. See Part II. D., supra.

2. Framework and Analysis for Discrimination Under the ADEA

An employer violates the ADEA when it fires employees who are forty years or

older on the basis of their age. 29 U.S.C. § 623(a)(1); Liebman v. Metropolitan Life Ins.

Co., 808 F.3d 1294, 1298 (11th Cir. 2015). “A plaintiff must establish that her age was the

‘but-for’ cause of the adverse employment action.” Liebman, 808 F.3d at 1298 (citing

Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009)). As in Title VII cases, courts

apply the McDonnell Douglas framework where a plaintiff’s ADEA claim relies upon

circumstantial evidence. Liebman, id.; Keller v. Hyundai Motor Mfg., 513 F. Supp. 3d

1324, 1332 (M.D. Ala. 2021). In the Eleventh Circuit, a prima facie case of ADEA

discrimination is made where the plaintiff shows (1) that she is a member of the protected

group between the age of forty and seventy; (2) she was subject to an adverse employment

action; (3) a substantially younger person filled the position from which she was

discharged; and (4) she was qualified to perform the job from which she was discharged.

Keller, 513 F. Supp. 3d at 1332 (quoting Liebman, 808 F.3d at 1298). As with Title VII

cases, the presentation of a prima facie case shifts the burden of showing a legitimate,

nondiscriminatory reason for the job action to the defendant, whereupon the plaintiff must

demonstrate that the proffered reasons are pretextual.

For the reasons discussed above in the Title VII context, Grant cannot show that she

experienced the adverse action required for her prima facie case under the ADEA. The

Court contrasts the fact that Grant never made known that her retirement was conditioned

on her disability and that her retirement should not have been implemented with the facts

in Harris v. Powhatan Cnty. Sch. Bd., 543 F. App’x 343 (4th Cir. 2013). In Harris, the

seventy-two year old African American plaintiff filled out his annual intent to return form

by indicating that he wanted to return as a school district employee the following year. He

submitted the form to the school district’s financial director, who did not forward the form

in the normal course of business, but instead told plaintiff that his position might be

eliminated and that he should retire. When the divisional superintendent/supervisor of the

plaintiff discussed retirement with him, plaintiff repeatedly conditioned it on receiving

compensation for the annual leave he accrued, in excess of normal carry over limits,

because the school district did not allow him to take summer vacations due to his

responsibilities in preparing school facilities for the next school year. Despite being

informed of plaintiff’s conditions for retirement by the divisional superintendent, the

school board approved the elimination of plaintiff’s position as proposed by the financial

director and divisional superintendent. See Harris, 543 F. App’x at 344-45. The Fourth

Circuit concluded that because plaintiff consistently demanded that he would not retire

without due compensation, a jury could conclude that plaintiff’s increased age motivated

the board’s decision to eliminate his position, and that the claimed reason of a budgetary

shortfall was pretextual. Id. at 348-49.

Here, Grant did not tell the Board employees responsible for implementing her

retirement that it was conditioned upon the approval of her disability application to RSA.

Because the Court has determined that Grant willingly submitted her request for retirement,

she cannot demonstrate that she is no longer employed by the Board for any reason other

than her voluntary submission of the form and letter notifying the Board that she wished to

retire at the end of the 2016-2017 school year. Hargray, 57 F.3d at 1568. Applying the

Hargray factors to Grant’s actions, the Court finds that because she voluntarily requested

retirement, she cannot establish an adverse employment action as required for a prima facie

case under the ADEA.

3. Immunity

In addition to defending Grant’s § 1981 and § 1983 claims on the merits, Defendants

assert they enjoy the protection of qualified immunity in their individual capacities. (Doc.

No. 52 at 60-64.) Because the Court finds that Defendants did not violate Grant’s

constitutional rights, it pretermits discussion of Defendants’ various claims of immunity.

4. Untimely Suit

Defendants urge the court to dismiss Grant’s Title VII and ADEA claims with

prejudice due to her alleged failure to file her Complaint within ninety (90) days of receipt

of the EEOC Notice of Rights letter. (Doc. No. 52 at 23-25.) A plaintiff asserting a claim

under Title VII or the ADEA must file her complaint within 90 days of her receipt of a

right to sue letter. Kerr v. McDonald’s Corp., 427 F.3d 947, 051 (11th Cir. 2005); Miller

v. Georgia, 223 F. App’x 842, 844 (11th Cir. 2007). Defendants argue that the Eleventh

Circuit presumes that a mailing is received three days after issuance when the date of

receipt is in dispute. (Id. at 24 (citing Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147,

148 n.1 (1984)).) Here, Grant’s testimonies and exhibits certainly place the date of receipt

in dispute. During her deposition, Grant could not remember when she received the notice.

(Doc. No. 51-1 at 39.) Her affidavit lists the date of receipt as October 20, 2021. (Doc.

No. 57-2 at ¶ 2.) Finally, an email to her attorney states that she received the notice of

rights on October 20, 2018. (Id. at 3.)

Defendants argue in their Reply that Grant’s affidavit should be disregarded by the

court as a contradiction of her deposition testimony. (Doc. No. 58 at 4-5 (citing Pete’s

Towing Co. v. City of Tampa, Fla., 378 F. App’x 917, 919 (11th Cir. 2010).) However,

there is no pending motion that would allow the Court to fully consider those arguments.

The Court has determined that without a formal motion, and at the summary judgment

stage, it will adhere to its obligation to accept all facts in the light most favorable to the

non-moving party and resolve all reasonable doubts in favor of the non-movant. Kroma

Makeup EU, LLC, 920 F.3d at 707.

Vv. CONCLUSION

For the foregoing reasons, it is hereby ORDERED that Defendants’ Joint Motion

for Summary Judgment (Doc. No. 50) is GRANTED.

A separate judgment will be entered.

DONE this 30th day of March, 2022.

ED STATES MAGISTRATE JUDGE

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