Robinson Miller v. Montgomery County Board of Education (CONSENT)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

BRIDGETT ROBINSON-MILLER, )

)

Plaintiff, )

) CASE NO. 2:18-cv-512-JTA

v. )

) (WO)

MONTGOMERY COUNTY BOARD )

OF EDUCATION, ANN ROY )

MOORE, ROBERT PORTERFIELD, )

LISA KEITH, W. DURDEN DEAN, )

ELEANOR DAWKINS, MARY )

BRIERS, MELISSA SNOWDEN, )

ARICA WATKINS-SMITH, PATRICK )

NELSON, and JOHN JOHNSTON, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

I. Introduction

On May 21, 2018, Plaintiff Bridgett Robinson-Miller filed this action against the

Montgomery County Board of Education (“MCBOE”), Ann Roy Moore, Robert

Porterfield, Lisa Keith, W. Durden Dean, Eleanor Dawkins, Mary Briers, Melissa

Snowden, Arica Watkins-Smith, Patrick Nelson, and John Johnston. (Doc. No. 1.) Plaintiff

alleges violations of the Family and Medical Leave Act, 29 U.S.C. §§ 2601, et seq.,

(“FMLA”); violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et

seq. (“Title VII”); unlawful retaliation under FMLA and Title VII; violation of the

Fourteenth Amendment right to equal protection; and state law claims of negligence and

wantonness.

The parties have consented to the exercise of dispositive jurisdiction by a magistrate

judge pursuant to 28 U.S.C. § 636(c). (Docs. No. 29 - 33.) Before the Court are the parties’

cross motions for summary judgment. (Docs. No. 123, 125.) Also before the Court is

Defendants’ motion for leave to amend their summary judgment brief. (Doc. No. 131.)

After careful scrutiny of the record, the motions, and the parties’ briefs, the Court concludes

that Defendants’ motion for leave to amend their summary judgment brief (Doc. No. 131)

is due to be GRANTED, Plaintiff’s motion for summary judgment (Doc. No. 123) is due

to be DENIED, and Defendants’ motion for summary judgment (Doc. No. 125) is due to

be GRANTED.

II. JURISDICTION AND VENUE

This Court exercises subject matter jurisdiction over Plaintiff’s Title VII and FMLA

claims pursuant to 28 U.S.C. § 1331. The Court exercises jurisdiction over Plaintiff’s state

law claims pursuant to 28 U.S.C. § 1367. The parties do not contest personal jurisdiction

or venue, and the Court finds sufficient allegations to support both in the Middle District

of Alabama.

III. FACTS1

Plaintiff is a certified elementary education teacher.2 (Doc. No. 126-10 at 8.) On

February 10, 2016, MCBOE hired Plaintiff as a substitute seventh grade math teacher to

1 Unless otherwise specifically indicated, the parties do not dispute the facts set out in this Section

of this Memorandum Opinion and Order.

2 Plaintiff testified that her teaching certification is for “[e]lementary, but it can go up to the eighth

grade.” (Doc. No. 126-10 at 8.)

complete the school year for a teacher who was on maternity leave from McKee Junior

High School (“McKee”). (Doc. No. 108 at 3; Doc. No. 124-1 at 1.) McKee serves students

in sixth through eighth grade. (Doc. No. 126-16 at 10.) The number of students enrolled at

McKee fluctuates from year to year; enrollment is currently around 730 students. (Id.)

Plaintiff worked at McKee as a substitute seventh grade math teacher until May

2016, when the 2015-16 school year ended. (Doc. No. 108 at 3.) In April 2016, Plaintiff

received a letter notifying her that her contract would not be renewed for the following

school year. (Doc. No. 124-2 at 1.) McKee’s principal, Defendant Patrick Nelson, chose

not to recommend renewal of Plaintiff’s employment at that time because he did not know

if he would have any available positions at McKee the following year that Plaintiff could

fill. (Doc. No. 126-10 at 8.) However, in August 2016, Plaintiff was rehired for the 2016-

17 school year, this time as a sixth-grade math intervention teacher. (Doc. No. 124-2 at 2-

3, 14; Doc. No. 126-10 at 8.)

Vincent Johnson, a tenured teacher, also taught sixth grade math intervention at

McKee. (Doc. No. 108 at 3; Doc. No. 126-15 at 4.) His classroom was next door to

Plaintiff’s sixth-grade math intervention classroom. (Doc. No. 108 at 4.) Plaintiff first met

Johnson when she was introduced to the McKee staff in March 2016. (Id.) Plaintiff’s only

interaction with Johnson during the 2015-16 school year occurred at the end-of-the-year

barbeque in May 2016, when Johnson asked her for her phone number. (Id.) In July 2016,

Plaintiff and Johnson began texting each other about whether she had been hired back at

McKee for the 2016-17 school year. (Id.)

Plaintiff alleges that, from August 3, 2016, to September 15, 2016, Johnson sexually

harassed her through text messages, phone calls, and in-person comments. (Id.) Johnson’s

communications included flirtatious and sexual overtures, even after Plaintiff informed

him that she was not interested in a sexual relationship with him because he was married.

(Doc. No. 124-2 at 3-7.)

On Friday, September 16, 2016, Johnson entered Plaintiff’s classroom and began

looking at, touching, and commenting on the items on her desk. (Doc. No. 124-8 at 19-20.)

Johnson also commented on Plaintiff’s health and told Plaintiff that she “looked good.”

(Doc. No. 124-8 at 18, 20.) Although Johnson did not physically touch Plaintiff, she felt

that he had entered too closely into her personal space. (Doc. No. 124-8 at 18-20.) Plaintiff

“felt enough was enough.” (Doc. No. 124-8 at 18.) She left the classroom to see the

assistant principal, Melissa Williams. (Id.)

Plaintiff told Assistant Principal Williams “what had been going on,” and she

showed Assistant Principal Williams the text messages between Johnson and herself. (Id.)

Assistant Principal Williams hugged Plaintiff and asked if Plaintiff would like for her to

go get Monica Jackson, the seventh-grade science teacher, and Plaintiff agreed. (Doc. No.

124-8 at 18.) Jackson arrived and hugged Plaintiff, and then Defendant Nelson arrived.

(Doc. No. 124-8 at 22.) Jackson asked Defendant Nelson if she could confront Johnson,

and Defendant Nelson replied, “No. Ms. Jackson, we have to do this one by the book.”

(Id.) Defendant Nelson left the room, and Plaintiff followed him to his office, where she

completed an incident form. (Id.; Doc. No. 108 at 4.) Defendant Nelson reported Plaintiff’s

complaint about Johnson to Defendant John Johnston, the Human Resources Director for

Montgomery Public Schools (“MPS”). (Doc. No. 108 at 4-5.)

The same day, September 16, 2016, Defendant Johnston instructed MPS Chief

Investigative Officer Curtis Forte to investigate Plaintiff’s sexual harassment complaint

against Johnson. (Doc. No. 108 at 5.) On Monday, September 19, 2016, Johnson was

placed on administrative leave pending the results of the investigation. (Id.) On Tuesday,

September 20, 2016, Officer Forte interviewed Plaintiff. (Id.) Officer Forte completed the

report of his investigation on Wednesday, September 21. (Id.)

After receiving Officer Forte’s report, Defendant Johnston recommended to

MCBOE that Johnson be placed on a three-day suspension and be given a letter of

reprimand. (Doc. No. 108 at 5.) MCBOE approved the suspension, and, on October 4,

2016, Johnson was suspended for three days without pay. (Id.) Defendant Johnston

provided the letter of reprimand to Johnson and told him “[n]ot to have any more

communication with” Plaintiff. (Doc. No. 108 at 5; Doc. No. 124-12 at 12-13.)

Before Johnson returned to his teaching duties at McKee, Defendant Johnston spoke

to Defendant Nelson about Johnson’s expected return date and about what should happen

at the school going forward. (Doc. No. 124-12 at 30.) Defendant Johnston told Defendant

Nelson that Johnson and Plaintiff should have no further contact with each other, and that,

if Johnson and Plaintiff did need to communicate, then a third party, preferably an

administrator, should be present. (Id.)

In October 2016, Defendant Johnston called Plaintiff to his office. (Doc. No. 124-8

at 23-24.) He informed Plaintiff that Johnson had been reprimanded and that, when Johnson

returned to work, he should not say anything to her. (Id.) Defendant Johnston also told

Plaintiff that, if she and Johnson needed to communicate, another teacher or an

administrator should be present for their conversation. (Id.) Plaintiff requested to be

transferred to a different school, and Defendant Johnston denied the request on grounds

that MCBOE does not transfer teachers after the first twenty days of the school year.3 (Doc.

No. 108 at 5; Doc. No. 124-8 at 24; Doc. No. 124-12 at 19.) Plaintiff then asked if her class

could be moved to another location that was not next door to Johnson’s classroom, and that

request was granted. (Doc. No. 124-8 at 24-25.) At some point after Plaintiff’s classroom

was moved to a new location on the McKee campus, the custodians did not clean Plaintiff’s

new classroom. (Doc. No. 124-8 at 25-27.)

When Johnson returned to his teaching duties at McKee, Defendant Nelson

informed him that he was to have no further contact with Plaintiff. (Doc. No. 126-16 at

76). Despite this instruction, Johnson interacted with Plaintiff on three occasions. (Doc.

No. 108 at 5.) Once, he said, “Good morning, Ms. Miller,” as they passed each other

entering the school. (Id.) Another time, he flicked his car lights at her as she was entering

the school. (Id. at 5-6.) A third time, he walked the children from his class through her

class’s line and smiled at her. (Id. at 6.) In addition, Johnson would look at Plaintiff in the

lunchroom and while passing her in the hall. (Id.) Plaintiff did not report any of these

incidents to anyone in administration. (Id.; Doc. No. 124-8 at 25.)

3 Plaintiff disputes the veracity of MCBOE’s stated grounds for not transferring her but cites no

evidence to show that a genuine factual dispute exists as to those grounds. (Doc. No. 123 at 16.)

After the winter school break, Plaintiff returned to work for the teacher in-service

days in January 2017, but she did not return to teach in January or thereafter. (Doc. No.

108 at 6.)

On February 16, 2017, Plaintiff requested FMLA leave with a planned return-to-

work date of February 27, 2017. (Doc. No. 108 at 6; Doc. No. 124-2 at 21.) The request

was approved, and Plaintiff’s FMLA leave began on February 17, 2017. (Doc. No. 108 at

6; Doc. No. 124-2 at 21.) The leave of absence request form that Plaintiff submitted, and

which Principal Nelson signed, did not contain a statement regarding the employee’s right

to job restoration. (Doc. No. 124-12 at 18.)

On March 1, 2017, Plaintiff submitted a second FMLA leave request, which was

approved, and her leave continued without interruption. (Doc. No. 108 at 6.) Plaintiff’s

second leave request listed her return date as “undetermined.” (Id.) Along with her second

leave request, Plaintiff submitted a note from her physician stating that her “recovery is

unknown.” (Id.) FMLA leave requests greater than ten days must be voted on by MCBOE.

(Doc. No. 124-12 at 16-17.) On March 15, 2017, after MCBOE met and voted to approve

Plaintiff’s March 1, 2017 FMLA leave request, Defendant Johnston sent a letter to Plaintiff

informing her that her leave request was approved. (Doc. No. 124-2 at 24; Doc. No. 124-

12 at 18; Doc. No. 124-20 at 15-16.) The letter also informed Plaintiff that, prior to

returning to work, she would need a doctor’s statement confirming that she was physically

and emotionally able to return to work. (Doc. No. 124-2 at 24.) MCBOE hired a substitute

teacher for Plaintiff’s class for the remainder of the school year. (Id.)

In March 2017, Principal Nelson submitted an intent form to MCBOE

recommending that six nontenured teachers not be re-employed at McKee for the 2017-18

school year: Perry Mosely, Telissa Warren, Warren Roberts, Arthur Bailey, Seekina

McMillan, and Plaintiff. (Doc. No. 108 at 7; Doc. No. 124-11 at 6.) Of these six, Plaintiff

was the only one who had requested FMLA leave. (Doc. No. 126-15 at 3.) McMillan was

the only one of the six who was re-hired to work at McKee; she was rehired as a special

education teacher, which requires specific certification. (Doc. No. 126-15 at 3.) MCBOE

re-hired Telissa Warren to work at a different middle school the following year. (Id. at 4.)

Defendant Nelson recommended that Plaintiff’s employment not be renewed

because her sixth-grade math intervention position was funded by Title I funds,4 and he

did not know if McKee would receive Title I funds the following school year. (Doc. No.

126-15 at 3-4.) Plaintiff’s elementary teaching certificate did not cover most of the classes

at McKee, and Defendant Nelson was concerned that “there was a good chance” no job

would be available for Plaintiff the following year due to her teaching certification

limitations. (Id.) As it later turned out, both of the sixth-grade math intervention positions

at McKee were eliminated the following year. (Id. at 4.) Johnson, who had tenure, was

reassigned to teach sixth grade science at McKee for the 2017-18 school year. (Id.)

4 “Title I funds” refers to federal funds available through Title I of the Elementary and Secondary

Education Act of 1965, as amended, 20 U.S.C.A. §§ 6301, et seq. Title I funds are offered to

schools with a high percentage of low-income students; the funds pay for extra educational

services to help at-risk students overcome their lack of resources. (Doc. No. 126-18 at 10.) The

amount of Title I funds available to a school can change from year to year depending on the number

of students enrolled and the amount of money allocated by the federal budget. (Id. at 10-11.)

By letter dated May 17, 2017, Principal Nelson notified Plaintiff that MCBOE had

accepted his recommendation not to renew her contract, effective May 26, 2017. (Doc. No.

124-2 at 15.) The letter stated that, if Plaintiff wished to be rehired by MCBOE for the

upcoming year, she should “check the state website and re-apply online.” (Id.)

The record contains a doctor’s note dated May 25, 2017, stating that Plaintiff would

be able to return to work on May 26, 2017, the last day of the 2016-17 school year. (Doc.

No. 108 at 6, n.3; Doc. No. 124-2 at 30, 33.) Plaintiff alleges that she “submitted” the May

25, 2017 doctor’s note to Defendants. Defendants do not dispute that the note was

submitted; however, they do dispute that they received it. (Doc. No. 108 at 6; Doc. No.

124-2 at 9.) A March 23, 2018 letter from Plaintiff’s attorney purports to enclose the May

25, 2017 doctor’s note to Defendants. (Doc. No. 123-2 at 31-33; Doc. No. 124-7 at 2-4.)

In her summary judgment briefs, Plaintiff does not allege that she provided the doctor’s

note to Defendants earlier than March 23, 2018, nor does she cite any evidence to support

such an allegation. (Doc. No. 108 at 6; Doc. No. 123 at 19.)

IV. PROCEDURAL HISTORY

On December 27, 2016 and February 27, 2017, Plaintiff filed a charge of

discrimination with the Equal Employment Opportunity Commission (“EEOC”). (Doc.

No. 1-1; Doc. No. 124-1 at 2-5.) On February 20, 2018, the EEOC issued a letter of

dismissal and notice of rights. (Doc. No. 124-1 at 4-5.)

On May 21, 2018, Plaintiff filed a Complaint against MCBOE, Robert Porterfield,

Ann Roy Moore, Lisa Keith, W. Durden Dean, Eleanor Dawkins, Mary Briers, Arica

Watkins Smith, Patrick Nelson, John Johnston, and Melissa Snowden. MCBOE is

Plaintiff’s former employer and operates the Montgomery County, Alabama school

system. (Doc. No. 1 at ¶¶ 7-8.) Defendant Ann Roy Moore was the Superintendent of

MCBOE at the time Plaintiff filed her Complaint. Defendant Robert Porterfield was the

President of MCBOE at the time Plaintiff filed her Complaint. (Doc. No. 1 at ¶ 11.)

Defendants Keith, Dean, Dawkins, Briers, and Smith were MCBOE board members at the

time Plaintiff filed her Complaint. (Doc. No. 1 at ¶¶ 12-16.) Although Defendant Snowden

is named in the style of the Complaint and has appeared in the case, the Complaint does

not state who she is or describe any acts or omissions on her part that relate to Plaintiff’s

claims. (Doc. No. 1.) Plaintiff sues Defendants Porterfield, Moore, Keith, Dean, Dawkins,

Briers, Smith, Nelson, Johnston, and Snowden in both their individual and official

capacities. (Doc. No. 1 at ¶¶ 10-18.)

On June 28, 2018, Defendants MCBOE, Briers, Dean, Keith, Porterfield, Smith, and

Snowden filed an answer. (Doc. No. 6.) On July 5, 2018, Defendant Dawkins filed an

answer. (Doc. No. 6.) On August 6, 2018, Defendants Johnston, Moore, and Nelson filed

an answer. (Doc. No. 24.)

On December 12, 2019, Plaintiff and Defendants filed motions for summary

judgment. (Docs. No. 73, 74, 76.) On October 30, 2020, the parties filed a Joint Motion for

Leave to File Stipulations and Status Report. (Doc. No. 106.) The parties stated that, due

to “the voluminous nature” of then-pending summary judgment motions and motions

involving a discovery dispute, “the parties [sought] leave of court to file a document setting

forth the issues to which the parties can stipulate, which issues remain disputed at this time,

and a summary of the parties[’] positions on the disputed issues.” (Id. at 3.) The parties

stated that “submitting such a joint summary document with these stipulations should help

narrow the issues for the court.” (Id.)

On November 2, 2020, the Court granted the parties’ joint motion to file

stipulations, and the parties filed their joint stipulations on November 20, 2020. (Doc. No.

106 at 3; Doc. No. 108.)

On February 22, 2020, the Court entered an order continuing the case due to the

COVID-19 pandemic and setting the case for a status conference on April 13, 2021. (Doc.

No. 109.) On April 9, 2021, the Court entered an order resetting the April 13, 2021 status

conference to an oral argument on all pending motions. (Doc. No. 110.)

On January 10, 2022, after hearing oral argument on all pending motions, the Court

entered an order resolving the then-pending discovery motions, reopening discovery for

the limited purpose of allowing one additional deposition, and directing Plaintiff to file a

proposed discovery plan as to a certain limited issue. (Doc. No. 113.) On January 19, 2022,

Plaintiff filed a proposed discovery plan for additional limited discovery. (Doc. No. 116.)

On January 21, 2022, the Court denied the then-pending motions for summary

judgment with leave to refile. (Doc. No. 117.) The Court directed the parties to submit a

joint plan for limited discovery and a jointly-proposed deadline for dispositive motions.

(Doc. No. 117.)

On February 3, 2022, the Court entered a new Uniform Scheduling Order. On June

1, 2022, Plaintiff filed a motion for summary judgment. (Doc. No. 123.) On June 3, 2022,

Defendants filed a motion for summary judgment. (Doc. No. 125.)

On June 23, 2022, Defendants filed a motion for leave to amend their summary

judgment brief. (Doc. No. 131.) Plaintiff filed no opposition to Defendants’ motion for

leave to amend their brief.5

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 a judgment as a matter of law.” Palm v. U.S., 904 F. Supp. 1312,

1314 (M.D. Ala. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The

party asking for summary judgment “always bears the initial responsibility of informing

the district court of the basis for its motion, and identifying those portions of the ‘pleadings,

depositions, answers to interrogatories, and admissions of file, together with the affidavits,

if any,’ which it believes demonstrate the absence of a genuine issue of material fact.”

Celotex, 477 U.S. at 323. The movant can meet this burden by presenting evidence showing

there is no dispute of material fact, or by showing, or pointing out to, the district court that

the nonmoving party has failed to present evidence in support of some element of its case

on which it bears the ultimate burden of proof. Id. at 322-324. A factual dispute is genuine

if the evidence would allow a reasonable jury to find for the nonmoving party. Anderson

v. Liberty Lobby, 477 U.S. 242, 248 (1986).

5 (See Doc. No. 120 at 2, Section 6) (“The failure to file a response to any motion – either

dispositive or non-dispositive – within the time allowed by the Court shall indicate that there is no

opposition to the motion.”).

Once the moving party has met its burden, Rule 56(e) “requires the nonmoving party

to go beyond the pleadings and by [its] 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, 477 U.S. at 324. To avoid summary judgment, the

nonmoving party “must do more than show that there is some metaphysical doubt as to the

material facts.” Matsushita v. Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106

(1986). On the other hand, the evidence of the nonmovant must be believed and all

justifiable inferences must be drawn in its favor. See Anderson, 477 U.S. at 255. After the

nonmoving party has responded to the motion for summary judgment, the court must grant

summary judgment if there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(e). As stated by the Court in

Celotex, if the non-moving party “fails to make a showing sufficient to establish the

existence of an element essential to [his] case, and on which [he] will bear the burden of

proof at trial,” the moving party is entitled to summary judgment. Celotex, 477 U.S. at 322.

The existence of cross-motions for summary judgment does not affect the applicable

Rule 56 standard. U.S. Aviation Underwriters, Inc. v. Yellow Freight Sys., Inc., 296 F.

Supp. 2d 1322, 1330 (S.D. Ala. 2003) (citing Gerling Global Reinsurance Corp. of Am. v.

Gallagher, 267 F.3d 1228, 1233 (11th Cir. 2001)). The court considers each motion

separately and need not necessarily grant one or the other. Id. (“Cross-motions for summary

judgment will not, in themselves, warrant the court in granting summary judgment unless

one of the parties is entitled to judgment as a matter of law on facts that are not genuinely

disputed.” (quoting U.S. v. Oakley, 744 F. 2d 1553, 1555 (11th Cir. 1984))). The existence

of cross-motions, however, may indicate the parties’ belief that there is agreement on the

material facts. Id.

VI. DISCUSSION

A. Defendants’ Motion for Leave to Amend Their Summary Judgment Brief

On June 23, 2022, Defendants moved for leave to file an amended summary

judgment brief. (Doc. No. 131.) Plaintiff did not file any opposition to the motion.

Although Plaintiff filed her response to Defendants’ summary judgment motion on June

23, 2023, allowing the Defendants to amend their brief will not prejudice Plaintiff because

Defendants’ amended brief is identical to the original, except that the table of contents has

been slightly revised and a table of authorities was added. Accordingly, the Court

concludes Defendants’ motion for leave to amend their reply brief is due to be granted.

B. FMLA Interference Claims (Counts One and Two)

In Count One of the Complaint, Plaintiff alleges that MCBOE interfered with the

exercise of her FMLA rights. (Doc. No. 1 at ¶¶ 39-43.) In Count Two of the Complaint,

Plaintiff alleges that MCBOE “knowingly and willfully and with reckless disregard”

interfered with the exercise of her FMLA rights. (Doc. No. 1 at ¶¶ 44-48.) Plaintiff

stipulates that she asserts her FMLA interference claims (Counts One and Two) only

against MCBOE, and not against any of the other Defendants in this case. (Doc. No. 108

at 7.) In accordance with that stipulation,6 Counts One and Two of the Complaint are due

6 Despite her stipulation, in briefing on summary judgment, Plaintiff argues that “Defendants” are

liable on her FMLA interference claims, though she does concede in a summary judgment brief

that “there is no individual capacity or personal liability” on her FMLA claims. (Doc. No. 130 at

3, 5.) The Court does not need to evaluate whether or to what extent Plaintiff effectively retracted

to be dismissed without prejudice as to all individual Defendants in their official and

personal capacities.

To prevail on a claim for interference with FMLA benefits, Plaintiff must prove (1)

that she was denied a benefit to which the FMLA entitled her, and (2) that the denial of the

FMLA benefit prejudiced her in some way. Ragsdale v. Wolverine World Wide, Inc., 535

U.S. 81, 89 (2002); Evans v. Books-A-Million, 762 F.3d 1288, 1295 (11th Cir. 2014); see

also 29 U.S.C. § 2617(a)(1)(A) (providing that employers who interfere with FMLA

benefits are liable “to any eligible employee affected” for damages equal to “any wages,

salary, employment benefits, or other compensation denied or lost to such employee by

reason of the violation” and “for such equitable relief as may be appropriate, including

employment, reinstatement, and promotion”).

Although there is no dispute that MCBOE provided Plaintiff at least 12 weeks of

FMLA leave,7 Plaintiff alleges that MCBOE denied FMLA benefits to her by the following

conduct: failure to comply with unspecified FMLA notice requirements, failure to provide

notification of approval of her FMLA leave request within five days of submission of the

request, notice of the right to job restoration, and the right to job restoration. (Doc. No. 108

her stipulation with respect to Defendants’ liability on the FMLA interference claims because, for

the reasons stated in this Section of the Memorandum Opinion and Order, Plaintiff’s FMLA

interference claims are without substantive merit.

7 Defendants argue that Plaintiff was not entitled to FMLA leave because she had not worked at

least 1,250 hours during the previous 12 months as required by 29 U.S.C. § 2611(2)(A)(ii).

Plaintiff disputes whether Defendants have met their burden to prove how many hours she worked.

The Court does not need to resolve that dispute because, explained in this Section of the

Memorandum Opinion and Order, Plaintiff cannot prevail on her FMLA interference claims for

other reasons.

at 8-9; Doc. No. 123 at 19.) Assuming for the sake of resolving the summary judgment

motions that these were all “benefits” to which Plaintiff was entitled under the FMLA, and

further assuming (without deciding) that MCBOE failed to provide those benefits, Plaintiff

still must demonstrate that she was prejudiced by that failure. See Evans, 762 F.3d at 1295.

Not being restored to her job is the only prejudice Plaintiff alleges that she suffered as a

result of MCBOE’s alleged acts of FMLA interference.

Thus, the Court considers the causal relationship, if any, between MCBOE’s alleged

acts of interference and the fact that MCBOE did not restore Plaintiff to her job. “An

employee has the right following FMLA leave ‘to be restored by the employer to the

position of employment held by the employee when the leave commenced’ or to an

equivalent position.” Martin v. Brevard Cnty. Pub. Sch., 543 F.3d 1261, 1267 (11th Cir.

2008) (quoting 29 U.S.C. § 2614(a)(1)(A)). However, the right to reinstatement is “not

absolute; an employer can deny reinstatement ‘if it can demonstrate that it would have

discharged the employee had [the employee] not been on FMLA leave.’” Id. (quoting

Strickland v. Water Works & Sewer Bd. of Birmingham, 239 F.3d 1199, 1206–07 (11th Cir.

2001)); see also 29 C.F.R. § 825.216 (“An employee has no greater right to reinstatement

or to other benefits and conditions of employment than if the employee had been

continuously employed during the FMLA leave period.”).

It is undisputed that Plaintiff did not return to work after taking FMLA leave.

Plaintiff cites no evidence that, during the 2016-17 school year, 8 she attempted or even

8 Plaintiff cites a May 25, 2017 doctor’s note stating that she could return to work on May 26, 2017

(the last day of the school year), but she cites no evidence that, prior to the end of the 2016-17

wanted to return to work before the end of the school year. Plaintiff supplies no evidence

that any Defendant prevented her from returning before the end of the 2016-17 school year

or that the alleged acts of interference somehow prevented her return before the end of the

school year. Further, Defendants provided uncontradicted evidence that, in March 2017,

Defendant Nelson chose to recommend nonrenewal of Plaintiff’s employment for the

following school year because he was not certain if her position as a sixth-grade math

teacher would be funded the following year, and because he was concerned that, due to the

limitations of her elementary education teaching certificate, there would not be any other

jobs available at McKee for which Plaintiff was qualified. (Doc. No. 126-15 at 3-4.)

Plaintiff’s teaching certificate did not cover most of the classes at McKee, and, as it turned

out, there were no sixth-grade math intervention positions at McKee the following year.

(Id.) Defendant Nelson’s unrebutted reasons for recommending nonrenewal have no

connection to the exercise of Plaintiff’s rights under the FMLA or to the alleged acts of

interference.

Thus, the uncontradicted evidence demonstrates lack of causation. There is no

evidence the alleged acts of interference prevented Plaintiff from returning to her job

during the 2016-17 school year. As for the 2017-18 school year, the unrebutted evidence

school year, she provided that doctor’s note to MCBOE or otherwise sought or desired to return to

her teaching duties during that school year. (Doc. No. 108 at 6; Doc. No. 124-2 at 30, 33.) Plaintiff

contends that she “submitted” the doctor’s note to Defendants, but she does not allege or cite any

evidence that she submitted it earlier than the following year when her attorney enclosed the note

in a March 23, 2018 letter demanding reinstatement. (Doc. No. 108 at 6; Doc. No. 124-2 at 9.)

Thus, the doctor’s note, standing alone, cannot support the inference that Plaintiff would have

returned to her job before the end of the school year but for the alleged FMLA interference.

establishes that, for reasons wholly unrelated to Plaintiff’s FMLA benefits or to the alleged

acts of interference, MCBOE chose not to offer Plaintiff her former job or an equivalent

one. See Krutzig v. Pulte Home Corp., 602 F.3d 1231, 1236 (11th Cir. 2010) (recognizing

that, “if an employer can show that it refused to reinstate an employee for a reason unrelated

to FMLA leave, the employer is not liable for failing to reinstate the employee after the

employee has taken FMLA leave” (citing Strickland, 239 F.3d at 1208)); see also Aponte

v. Brown & Brown of Fla., Inc., 806 F. App’x 824, 828 (11th Cir. 2020) (holding that, “[i]n

the absence of any evidence showing that [the plaintiff] sustained any monetary loss or any

other prejudice as a direct result of the alleged technical violations of the FMLA, [the

plaintiff] was not entitled to any relief”).

Plaintiff contends that, despite the lack of specific harm caused by the alleged

interference, she nevertheless can overcome summary judgment on her FMLA interference

claims because she seeks equitable relief. She argues that “equitable relief constitutes

injury and prejudice supporting an FMLA interference claim just as monetary damages.”

(Doc. No. 130 at 12.) Plaintiff is incorrect. Although equitable relief may theoretically be

awarded in the absence of compensable harm, equitable relief cannot be awarded unless

Plaintiff first demonstrates that the FMLA interference caused some harm or prejudice that

is remediable by equitable relief. An FMLA interference claim, even for equitable relief

alone, cannot survive on a mere technical violation that causes no remediable harm.

Ragsdale, 535 U.S. at 89 (holding that the FMLA “provides no relief unless the employee

has been prejudiced by the violation,” and noting that the remedy for FMLA interference,

including appropriate equitable relief such as reinstatement, “is tailored to the harm

suffered”); Evans, 762 F.3d at 1295-96; Boykin v. Home Choice of Alabama, Inc., No. CV

18-0281-WS-MU, 2018 WL 5315210, at *3 (S.D. Ala. Oct. 26, 2018) (denying a motion

to dismiss an FMLA interference claim where the plaintiff could plausibly “demonstrate

some harm from the denial of her FMLA leave that may be remediable by equitable

relief”); see also Aponte, 806 F. App’x at 828 (holding that technical violations of the

FMLA do not give rise to a claim for FMLA interference unless they directly cause

“monetary loss or any other prejudice” (emphasis added)).

Accordingly, Plaintiff’s FMLA interference claims (Counts One and Two) against

MCBOE are due to be dismissed with prejudice. Aponte, 806 F. App’x at 828 (holding

that summary judgment was appropriate on an FMLA interference claim “[i]n the absence

of any evidence showing that [the plaintiff] sustained any monetary loss or any other

prejudice as a direct result of the alleged technical violations of the FMLA”).

C. FMLA Retaliation Claims (Counts Three and Four)

Plaintiff stipulates that she asserts her FMLA retaliation claims (Counts Three and

Four) only against MCBOE, and not against any of the other Defendants in this case. (Doc.

No. 108 at 16.) In accordance with that stipulation,9 Counts Three and Four of the

Complaint are due to be dismissed without prejudice as to all Defendants except MCBOE.

9 Despite her stipulation, in briefing on summary judgment, Plaintiff argues that “Defendants” are

liable on her FMLA retaliation claims, though she concedes that “there is no individual capacity

or personal liability under . . . the FMLA.” (Doc. No. 130 at 3, 5.) The Court need not evaluate

whether or to what extent Plaintiff effectively retracted her stipulation with respect to Defendants’

liability on the FMLA retaliation claims because, for the reasons stated in this Section of the

Memorandum Opinion and Order, Plaintiff’s FMLA retaliation claims are without substantive

merit.

“[T]o succeed on a retaliation claim, an employee must demonstrate that [her]

employer intentionally discriminated against [her] in the form of an adverse employment

action for having exercised an FMLA right.” Strickland, 239 F.3d at 1207. Absent direct

evidence of the employer’s intent, the Eleventh Circuit analyzes an FMLA retaliation claim

using the burden-shifting framework established in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). Strickland, 239 F.3d at 1207. Under the McDonnell Douglas

framework, Plaintiff must first offer evidence sufficient to establish a prima facie case of

retaliation by showing “(1) [s]he engaged in statutorily protected activity; (2) [s]he

experienced an adverse employment action; and (3) there is a causal connection between

the protected activity and the adverse action.” Id.

It is undisputed that Plaintiff engaged in statutorily protected activity by requesting

FMLA leave. (Doc. No. 18 at 16.) It is also undisputed that Plaintiff suffered an adverse

employment action when MCBOE did not renew her teaching contract for the 2017-18

school year. Id. As to causation, the third element of Plaintiff’s prima facie case, she relies

solely on the proximity between the date of her first request for FMLA leave in February

2017, the date of March 15, 2017 when Defendant Nelson recommended her contract be

nonrenewed, and MCBOE’s May 15, 2017 decision not to renew her contract. (Doc. No.

123 at 20.)

Assuming, without deciding, that the timing between Plaintiff’s FMLA leave

request and MCBOE’s decision not to renew Plaintiff’s contract is close enough to create

a prima facie case of a causal connection,10 then, under the McDonnell Douglas

framework, the burden shifts to MCBOE to provide evidence of a “legitimate,

nondiscriminatory reason” for not renewing Plaintiff’s contract. Todd v. Fayette Cnty. Sch.

Dist., 998 F.3d 1203, 1216 (11th Cir. 2021). MCBOE has supplied evidence that the reason

Defendant Nelson recommended that Plaintiff’s contract not be renewed for the 2017-18

school year was because (1) he was concerned Plaintiff’s math intervention teaching

position would not be funded for the 2017-18 school year and (2) “there was a good

chance” no other position at McKee would be available for her due to the limitations of her

elementary education teaching certificate, which did not cover most positions at McKee.

(Doc. No. 126-15 at 3-4.)

Because Defendant Nelson’s reasons for recommending nonrenewal are wholly

unrelated to Plaintiff’s protected FMLA activity, MCBOE met its burden to proffer a

legitimate, nonretaliatory reason for the nonrenewal. Accordingly, the McDonnell Douglas

burden shifts to Plaintiff to show that MCBOE’s articulated reasons for not renewing the

contract are merely a pretext for retaliation. Todd, 998 F.3d at 1216. Specifically, Plaintiff

must come forward with evidence, including evidence used in making the prima facie case,

to establish “‘such weaknesses, inconsistencies, incoherencies, or contradictions in the

employer’s proffered legitimate reasons for its action that a reasonable factfinder could

10 Defendant argues that the timing between the events was too remote to give rise to a prima facie

case of retaliation. The Court pretermits discussion of this argument because, as explained in this

Section of the Memorandum Opinion and Order, Plaintiff’s FMLA retaliation claims are due to be

dismissed because she cannot rebut Defendants’ uncontradicted evidence of nondiscriminatory

animus.

find them unworthy of credence.’” Matamoros v. Broward Sheriff's Off., 2 F.4th 1329,

1337 (11th Cir. 2021) (quoting Alvarez v. Royal Atl. Devs., Inc., 610 F.3d 1253, 1265 (11th

Cir. 2010)). Plaintiff “ultimately . . . bears the burden of showing that discrimination was

the reason for her dismissal.” Todd, 998 F.3d at 1216.

In response to MCBOE’s proffered evidence of nonretaliatory animus, Plaintiff has

not come forward with evidence to suggest pretext. (Doc. No. 130 at 5-6.) She merely

restates the undisputed facts that (1) she engaged in a protected activity and (2) she suffered

an adverse employment action. (Id.) She offers no discussion of causation, retaliatory

animus, or MCBOE’s proffered reasons for its decision not to renew her contract.11 (Id.)

Because Plaintiff failed to provide any evidence of pretext, MCBOE is entitled to

summary judgment on Plaintiff’s FMLA retaliation claims (Counts Three and Four).

11 At this final stage of the McDonnell Douglas burden-shifting analysis, Plaintiff does not argue

that pretext is suggested by the mere temporal proximity between the protected FMLA activity

and the adverse employment action, the sole evidence upon which Plaintiff relied to establish her

prima facie case. Even if Plaintiff had raised such an argument, that timing – approximately two

weeks – would not by itself be sufficient grounds to establish pretext in this case, especially

because Plaintiff has not argued that it is, nor has she cited any caselaw to support such an

argument. See Gogel v. Kia Motors Mfg. of Georgia, Inc., 967 F.3d 1121, 1138 n.15 (11th Cir.

2020) (holding that, “[w]hile close temporal proximity between the protected conduct and the

adverse employment action can establish pretext when coupled with other evidence, temporal

proximity alone is insufficient” at the final stage of the McDonnell Douglas framework; Hurlbert

v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1298 (11th Cir. 2006) (“The close temporal

proximity between Hurlbert’s request for leave and his termination—no more than two weeks,

under the broadest reading of the facts—is evidence of pretext, though probably insufficient to

establish pretext by itself.”); see also McClain v. Metabolife Int’l, Inc., 401 F.3d 1233, 1243 (11th

Cir. 2005) (“The post hoc ergo propter hoc fallacy assumes causality from temporal sequence. . .

. It is called a fallacy because it makes an assumption based on the false inference that a temporal

relationship proves a causal relationship.”); Chavous v. City of Saint Petersburg, 576 F. Supp. 3d

1040, 1062 n.5 (M.D. Fla. 2021) (“If mere temporal proximity was enough to establish causation

and to rebut the employer’s asserted rationale, then it would collapse the McDonnell Douglas

analysis into the prima facie case.”).

Chapman v. AI Transp., 229 F.3d 1012, 1037 (11th Cir. 2000) (“[T]o avoid summary

judgment, a plaintiff must produce sufficient evidence for a reasonable factfinder to

conclude that each of the employer’s proffered nondiscriminatory reasons is pretextual.”).

D. Title VII- Sexual Harassment/Hostile Work Environment Claim (Count Five)

In Count Five of Plaintiff’s Complaint, she alleges that, in violation of Title VII, she

was subjected to a hostile work environment as a result of sexual harassment. (Doc. No. 1

at ¶¶ 59-72; Doc. No. 108 at 16.) Plaintiff stipulates that she asserts her hostile work

environment claim (Count Five) only against MCBOE, and not against any of the other

Defendants in this case; she further concedes that “there is no individual capacity or

personal liability under Title VII.” (Doc. No. 108 at 11; Doc. No. 130 at 3.) In accordance

with the stipulation,12 Count Five of the Complaint is due to be dismissed without prejudice

as to all Defendants except MCBOE.

Under Title VII, it is unlawful for an employer “to discriminate against any

individual with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s race, color, religion, sex, or national origin.” 42

U.S.C. § 2000e–2(a)(1). “Although Title VII itself does not mention sexual harassment, it

has long been settled that the statutory phrase ‘terms, conditions, or privileges of

12 In her initial summary judgment brief, Plaintiff refers to alleged wrongful conduct by

“Defendants” with respect to her Title VII hostile work environment claim. (Doc. No. 123 at 6-

14.) However, in a summary judgment response brief, she argues only that “MCBOE is not entitled

to summary judgment on Plaintiff’s hostile work environment claim.” (Doc. No. 130 at 6.) The

Court need not evaluate whether or to what extent Plaintiff effectively retracted her stipulation

with respect to Defendants’ liability on the Title VII hostile work environment claim because, for

the reasons stated in this Section of the Memorandum Opinion and Order, Plaintiff’s Title VII

hostile work environment claim is without substantive merit.

employment’ includes within its scope a discriminatorily hostile or abusive environment.”

Hulsey v. Pride Rests., LLC, 367 F.3d 1238, 1244 (11th Cir. 2004) (citing Mendoza v.

Borden, Inc., 195 F.3d 1238, 1244 (11th Cir. 1999) (en banc)).

To establish a prima facie case of hostile work environment due to sexual

harassment, Plaintiff must show “(1) that she belongs to a protected group; (2) that she has

been subjected to unwelcome sexual harassment; (3) that the harassment was based on her

sex; (4) that the harassment was sufficiently severe or pervasive to alter the terms and

conditions of employment and create a discriminatorily abusive working environment; and

(5) that a basis [exists] for holding the employer liable.” Hulsey, LLC, 367 F.3d at 1244.

As explained below, MCBOE is entitled to summary judgment on the fifth element of

Plaintiff’s prima facie case, obviating the need to address the parties’ arguments regarding

the other elements of her prima facie case.

When the alleged harassment is committed by a coworker, “a Title VII plaintiff must

show that the employer either knew (actual notice) or should have known (constructive

notice) of the harassment and failed to take immediate and appropriate corrective action.”

Watson v. Blue Circle, Inc., 324 F.3d 1252, 1259 (11th Cir. 2003). Actual notice can be

provided by evidence MCBOE knew of the harassment. Id. “Constructive notice, on the

other hand, is established when the harassment was so severe and pervasive that

management reasonably should have known of it.” Id.

Plaintiff does not argue that MCBOE knew or should have known about Johnson’s

allegedly harassing conduct before she reported it to Assistant Principal Williams and

Defendant Nelson on September 16, 2016, or that it failed to take effective action before

that date. (Doc. No. 123 at 3.) Rather, Plaintiff argues, once MCBOE received her

complaint, it was responsible to take appropriate corrective action, but did not. (Id.)

Plaintiff contends that MCBOE’s corrective action was ineffective, inadequate, and

negligent because, after MCBOE reprimanded and disciplined Johnson, he continued to

sexually harass her on three occasions: (1) when he said “Good morning, Ms. Miller” as

the two passed by each other on the way into school one morning; (2) when he flicked his

car lights at her one day as she was entering the school, and (3) when he smiled at her when

he and his students passed through her students’ line in the hallway. (Doc. No. 123 at 9,

13.)

It is undisputed that Plaintiff never reported the post-reprimand incidents to

MCBOE, and she does not discuss or provide any evidentiary support to show why

MCBOE somehow should have known about those incidents. (Doc. No. 108 at 6.)

Nevertheless, Plaintiff argues that the mere fact those incidents occurred proves MCBOE’s

corrective action was inadequate and unreasonable. See Johnson v. Austal, U.S.A., L.L.C.,

805 F. Supp. 2d 1299, 1317 (S.D. Ala. 2011) (holding that an employer’s corrective action

“‘must be “reasonably calculated to end the harassment,” and the promptness and adequacy

of the employer's response must be evaluated on a case-by-case basis. Of special

importance is whether the . . . harassment ended after the remedial action was taken.’”

(quoting Munn v. Mayor and Aldermen of City of Savannah, Ga., 906 F. Supp. 1577, 1583

(S.D. Ga.1995)). But see Stancombe v. New Process Steel LP, 652 F. App’x 729, 736 (11th

Cir. 2016) (holding that warnings and counselling for the harasser are sufficient when

allegations are substantiated, and that, even though warning and counseling did not prevent

a second incident from occurring, “we cannot say that [the employer’s] actions were

unreasonable or inappropriate under the circumstances”).

In response to Plaintiff’s sexual harassment complaint, MCBOE launched an

immediate investigation upon receiving her complaint; reprimanded, disciplined, and

instructed Johnson not to communicate further with Plaintiff; and moved Plaintiff’s

classroom farther from Johnson’s room at her request. Plaintiff contends that MCBOE

should have done more to achieve an adequate response. Specifically, Plaintiff contends

that Principal Nelson should have taken a more active role in monitoring Johnson’s

interactions with her after the reprimand and that MCBOE should have granted her request

to transfer to another school. Of note, Plaintiff provides no explanation or evidence to show

how additional “monitoring” by the school principal would have alerted him to (or

prevented) the three fleeting interactions between her and Johnson that occurred in

different locations on the McKee campus after Johnson was instructed to communicate no

further with her.

In any event, Plaintiff cannot prevail on her argument that MCBOE should have

done more because she provided no evidence that the measures MCBOE did undertake

were inadequate to stop Johnson from sexually harassing her. Although a reasonable

factfinder could find that Johnson intended to communicate something by stating, “Good

morning,” flicking his car lights, and smiling at Plaintiff while passing her in the hallway,

she has not explained or provided any evidence to demonstrate how those communications

could reasonably be considered sexually harassing in nature or based on Plaintiff’s sex.

Thus, Plaintiff has not supplied any evidence that MCBOE’s corrective action was

ineffective to stop Johnson from sexually harassing her. Baldwin v. Blue Cross/Blue Shield

of Ala., 480 F.3d 1287, 1301–02 (11th Cir.2007) (holding that Title VII “does not prohibit

harassment alone, however severe and pervasive. Instead, Title VII prohibits

discrimination, including harassment that discriminates based on a protected category such

as sex.”); see Garczynski v. Bradshaw, 573 F.3d 1158, 1165 (11th Cir. 2009) (holding that,

to overcome a summary judgment motion, the non-moving party must produce substantial

evidence, which requires more than a “mere scintilla” or “some metaphysical doubt as to

the material facts”).

Accordingly, MCBOE is entitled to summary judgment on Count Five of Plaintiff’s

Complaint. Watson v. Blue Circle, Inc., 324 F.3d 1252, 1261 (11th Cir. 2003) (“If an

employer has actual or constructive notice of harassment but takes immediate and

appropriate corrective action, the employer is not liable for the harassment.”). Cf. Baldwin,

480 F.3d at 1306 (holding that, where an employer has chosen an adequate remedy, the

complainant does not get to choose a different one).

E. Title VII - Gender Discrimination Claim (Count Six)

In Count Six of her Complaint, Plaintiff alleges that she was subjected to

discrimination on the basis of her sex in violation of Title VII. (Doc. No. 1 at ¶¶ 73-80.)

Plaintiff stipulates that she asserts her Title VII sex discrimination claim (Count Six) only

against MCBOE, and not against any of the other Defendants in this case. (Doc. No. 108

at 21.) In accordance with the stipulation, Count Six of the Complaint is due to be dismissed

without prejudice as to all Defendants except MCBOE.

Plaintiff alleges that MCBOE discriminated against her based on her gender by

denying her request to transfer to another school for the remainder of the 2016-17 school

year and by not renewing her contract for the 2017-18 school year. (Doc. No. 123 at 16.)

To survive summary judgment on her gender discrimination claim, Plaintiff “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 (11th Cir. 2019). She attempts to do by satisfying the McDonnell

Douglas burden-shifting framework. (Doc. No. 123 at 15-16.) Therefore, Plaintiff “bears

the initial burden of establishing a prima facie case of 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.” Id. at 1220–21.

It is undisputed that, as a woman, Plaintiff is a member of a protected class, thus

satisfying the first element of her prima facie case. (Doc. No. 108 at 21.) As for the second

element of Plaintiff’s prima facie case, the parties do not dispute that she was subjected to

adverse employment action when MCBOE decided not to renew her contract for the 2017-

18 school year. (Id. at 21-22.) MCBOE does dispute that the denial of a mid-year transfer

was an adverse employment action. However, as explained below, even if denial of a mid-

year transfer did constitute an adverse employment action, MCBOE is nevertheless entitled

to summary judgment on Plaintiff’s Title VII gender discrimination claim.

As for the third element of Plaintiff’s prima facie case – that she was qualified to

perform the job in question – Plaintiff offers no proof. Plaintiff does not provide any

evidence that she was qualified for an available job at another school for the 2016-17 school

year (for a transfer) or at McKee or elsewhere for 2017-18 (for a contract renewal).

Plaintiff’s elementary teaching certificate did not cover most of the classes at McKee, and

all sixth-grade math intervention positions (a job for which Plaintiff was qualified) were

eliminated at McKee for the 2017-18 school year. (Doc. No. 126-15 at 3-4.) Plaintiff’s May

17, 2017 nonrenewal letter stated that, if she wished to be considered for rehire the

following year, she should “check the state website and reapply online.” (Doc. No. 124-2

at 15.) Plaintiff identifies no jobs for which she was qualified to apply for rehire to teach

the following year and offers no evidence that MCBOE rejected any application for rehire.

In sum, the undisputed evidence contains no indication that a job existed for which Plaintiff

was qualified for transfer, rehire, or contract renewal.

As for the final element of Plaintiff’s prima facie case – that her employer treated

differently the similarly-situated employees outside her protected class – Plaintiff’s gender-

discrimination claims fail as a matter of law. As to her claim of discriminatory refusal to

renew her contract, Plaintiff fails to identify any similarly-situated comparators whose

contracts were renewed, and her own evidentiary submission indicates that both male and

female teachers were on Defendant Nelson’s list of teachers recommended for nonrenewal.

(Doc. No. 108 at 7; Doc. No. 124-11 at 6.) As for her claim of discriminatory refusal to

transfer her to another school during the 2016-17 school year, Plaintiff also does not

identify any comparators in summary judgment briefing; however, the parties’ joint

stipulation states that Plaintiff identifies two males, Alan Owens and Reginald Coats, “as

being transferred in the middle of the school year while her request for a transfer was

denied.” (Doc. No. 108 at 21.) In the joint stipulation, as well as in summary judgment

briefing, however, Defendants argue that Owens and Coats are not similarly-situated

comparators. (Doc. No. 108 at 22.)

In applying the McDonnell Douglas framework, an appropriate comparator is one

that is “similarly situated in all material respects.” Lewis, 918 F.3d at 1218. While the

comparator need not be a doppelganger, “a plaintiff and her comparators must be

sufficiently similar, in an objective sense, that they ‘cannot reasonably be distinguished.’”

Id. at 1228 (quoting Young v. United Parcel Serv., Inc., 575 U.S. 206, 231 (2015)).

Alan Owens is an HVAC technician who was assigned to several schools at once.

(Doc. No. 126-6 at ¶ 12.) In response to a sexual harassment complaint against him, during

the school year, MCBOE relieved him of his duties at one of his assigned schools and

added another school to his list of assigned schools. (Id.) Owens is not a valid comparator

because he can “reasonably be distinguished” from Plaintiff. Lewis, 918 F.3d at 1228. He

is not a teacher. Adjusting a maintenance worker’s list of assigned schools mid-year does

not involve the same material considerations as removing a certified teacher from a

classroom at one school in the middle of the year and reassigning her to another school,

displacing another teacher13 in the process and requiring MCBOE to assign another

qualified teacher to instruct the transferee’s original students for the remainder of the

school year. In addition, Plaintiff has not shown that (as with Owens) there was a position

at another school for which she was qualified and that could accommodate the change in

13 Plaintiff has not identified any open positions at other schools for which she was qualified and

that were available during the time she sought a mid-year transfer.

work assignments. Therefore, Plaintiff has not established that she is situated similarly to

Owens “in all material respects.” Lewis, 918 F.3d at 1218.

Reginald Coats was a math coach at Vaughn Road Elementary School. (Doc. No.

126-18 at ¶ 7.) In response to an allegation of sexual harassment against Coats in May

2011, MCBOE placed him on leave beginning May 9, 2011, for the remainder of the school

year, then transferred him to begin the following school year at another school. (Id.) Like

Owens, Coats is readily and reasonably distinguishable from Plaintiff. Placing a math

coach on leave for the brief remainder of the 2010-11 school year does not entail the same

material considerations as removing a 6th grade math intervention classroom teacher from

her assigned students much closer to the middle of the school year and finding another

qualified teacher to effectively replace her in the classroom mid-year. Further, Plaintiff

presents no evidence that reassigning Coats displaced another teacher or that, had she been

reassigned mid-year, no other teacher would have been displaced. In addition, Plaintiff has

not supplied evidence that (as with Coats), a teaching position was available that could

accommodate the change in her job assignment. Thus, Plaintiff has not shown that she and

Coats are “similarly situated in all material respects.” Lewis, 918 F.3d at 1218.

Even if Plaintiff had made out a prima facie case of discrimination (she did not),

she made no effort to address the remaining requirements of the McDonnell Douglas

framework by supplying evidence to support her conclusory argument that MCBOE’s

nondiscriminatory reason for firing her was “simply not true.” (Doc. No. 123 at 16.)

MCBOE stated that it did not transfer Plaintiff mid-year because it had a policy of not

granting teachers’ requests to transfer after the first 20 days of school. (Doc. No. 124-12 at

19; Doc. No. 126-25 at 10.) Plaintiff has not articulated any basis or supplied any evidence

for concluding that MCBOE’s explanation was pretextual, and neither of her proffered

comparators were teachers transferred after the first 20 days of the school year in

derogation of MCBOE’s stated policy.

Accordingly, MCBOE is entitled to judgment as a matter of law on Plaintiff’s Title

VII sex discrimination claim (Count Six). Cuddeback v. Fla. Bd. of Educ., 381 F.3d 1230,

1235 (11th Cir. 2004) (“If the plaintiff does not satisfy her burden of establishing a genuine

issue of material fact that the employer’s reason [for the adverse employment action] was

pretextual, the grant of summary judgment in favor of the employer is proper.”).

F. Title VII Retaliation Claim (Count Seven)

Plaintiff stipulates that she asserts her FMLA retaliation and Title VII retaliation

claims (Counts Three, Four, and Seven) only against MCBOE, and not against any of the

other Defendants in this case. (Doc. No. 108 at 16.) In accordance with that stipulation, 14

Count Seven of the Complaint is due to be dismissed without prejudice as to all Defendants

except MCBOE.

Title VII prohibits employers from discriminating against employees in retaliation

for making a charge of sex discrimination. 42 U.S.C. § 2000e-3(a). Plaintiff alleges that

14 Despite her stipulation, in briefing on summary judgment, Plaintiff argues that “Defendants” are

liable on her Title VII retaliation claims, though she concedes that “there is no individual capacity

or personal liability under Title VII.” (Doc. No. 130 at 3, 5.) The Court does not need to evaluate

whether or to what extent Plaintiff effectively retracted her stipulation with respect to Defendants’

liability on the Title VII retaliation claims because, for the reasons stated in this Section of the

Memorandum Opinion and Order, Plaintiff’s Title VII retaliation claims are without substantive

merit.

MCBOE retaliated against her for making a charge of sex discrimination by moving her

classroom to a new location, not cleaning her new classroom, and not renewing her

teaching contract for the 2017-18 school year. In the absence of direct evidence of

retaliatory intent, the McDonnell Douglas framework applies to Plaintiff’s Title VII

retaliation claims. Patterson v. Georgia Pac., LLC, 38 F.4th 1336, 1344 (11th Cir. 2022);

Dagnesses v. Target Media Partners, 711 F. App’x 927, 933 (11th Cir. 2017). To make a

prima facie case for a claim of retaliation under Title VII, a plaintiff must first show (1)

that “she engaged in statutorily protected activity,” (2) that “she suffered an adverse

action,” and (3) “that the adverse action was causally related to the protected activity.”

Gogel v. Kia Motors Mfg. of Georgia, Inc., 967 F.3d 1121, 1134–35 (11th Cir. 2020)

(quoting Jefferson v. Sewon Am., Inc., 891 F.3d 911, 924 (11th Cir. 2018); Bryant v. Jones,

575 F.3d 1281, 1307–08 (11th Cir. 2009)).

The first element of Plaintiff’s prima facie case is satisfied. Title VII expressly

prohibits retaliation for making a sex discrimination charge. 42 U.S.C. § 2000e-3(a). The

parties have stipulated that Plaintiff engaged in protected activity when she filed her sexual

harassment complaint on September 16, 2016. (Doc. No. 108 at 16.)

As for the second element of Plaintiff’s prima facie case, the parties agree that

nonrenewal of Plaintiff’s contract constitutes an adverse employment action. (Doc. No.

108 at 16.) MCBOE also does not dispute that the failure to clean Plaintiff’s classroom was

an adverse employment action. (Doc. No. 129 at 18.) As for MCBOE moving Plaintiff’s

classroom, however, Plaintiff has submitted no evidence that moving to a new location

caused her any injury or materially altered the conditions of her employment in any

negative way. In fact, Plaintiff herself requested the move so that she would not have to

teach next door to Johnson, her alleged harasser. Because the undisputed evidence

establishes that the classroom move was not an adverse action, MCBOE is entitled to

judgment as a matter of law on Plaintiff’s claim that moving her classroom constituted

impermissible retaliation in violation of Title VII. See Burlington N. & Santa Fe Ry. Co. v.

White, 548 U.S. 53, 67 (2006) (“The antiretaliation provision [of Title VII] protects an

individual not from all retaliation, but from retaliation that produces an injury or harm.”).

As for the classroom cleaning issue and the third element of Plaintiff’s prima facie

case, causation, Plaintiff offers only a conclusory assertion that her classroom “was not

cleaned in retaliation for her sexual harassment complaint.” (Doc. No. 123 at 15.) If there

exists some basis to support a prima facie case that the lack of classroom cleaning had

anything to do with her sexual harassment complaint, Plaintiff has not argued it on

summary judgment.15 For example, Plaintiff does not offer any explanation, argument, or

evidence regarding when the classroom cleaning issue arose relative to the filing of her

15 In deposition testimony that Plaintiff did not discuss on summary judgment, she testified to why

she speculated that the lack of cleaning was retaliatory, and she included the classroom cleaning

issue in her EEOC charge, which she attached to her Complaint. (Doc. No. 1-1; Doc. No. 124-8 at

26, 51.) Because Plaintiff did not include those reasons in her summary judgment arguments, the

Court is not obligated to consider whether those reasons could support a prima facie case of

causation on summary judgment. “There is no burden upon the district court to distill every

potential argument that could be made based upon the materials before it on summary judgment.”

Resol. Tr. Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995). Instead, the “onus is on the

parties to formulate” their arguments on summary judgment, and “grounds alleged in the complaint

but not relied upon in summary judgment are deemed abandoned.” Id; see also Higgins v. New

Balance Athletic Shoe, Inc., 194 F.3d 252, 260 (1st Cir. 1999) (holding that, on summary judgment,

“[t]he district court is free to disregard arguments that are not adequately developed”); Chavous v.

City of Saint Petersburg, 576 F. Supp. 3d 1040, 1051 (M.D. Fla. 2021) (holding that a summary

judgment brief’s “oblique reference” to certain evidence, without more, “d[id] not suffice to

establish a prima facie case of [FMLA] interference”).

harassment complaint; the evidence she cites without comment or discussion indicates only

that the issue arose at some point after her classroom was moved and before she took

FMLA leave. (Doc. No. 123 at 15 (citing Doc. No. 124-8 at 25-26).) Absent any arguments

or evidence on the point, Plaintiff has failed to establish a prima facie case of a retaliatory

cause behind the lack of classroom cleaning. Accordingly, the burden does not shift to

MCBOE to establish a nondiscriminatory reason for the classroom cleaning issues, and

MCBOE is entitled to summary judgment on Plaintiff’s Title VII claim that MCBOE

retaliated against her by not ensuring that her classroom was cleaned. Glasscox v. Argo,,

903 F.3d 1207, 1213 (11th Cir. 2018) (“Conclusory allegations and speculation are

insufficient to create a genuine issue of material fact.”).

For prima facie proof of a retaliatory cause behind the nonrenewal of her contract,

Plaintiff relies entirely on “the timing of her complaint, move to another classroom a day

or two later, recommendation not to renew employment by [Defendant] Nelson on March

15, 2017, and decision not to renew [Plaintiff’s] contract by Defendant Johnston and

MCBOE on May 15, 2017.” (Doc. No. 123 at 15.) Plaintiff’s reliance on temporal

proximity is unavailing. Plaintiff filed her harassment complaint on September 16, 2016.

(Doc. No. 124-8 at 19-20.) Thus, under the most generous construction of the timing of

events, six months elapsed between the protected activity and the adverse action. At the

prima facie stage of proving causation, “[t]he burden of causation can be met by showing

close temporal proximity between the statutorily protected activity and the adverse

employment action.” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir.

2007) (emphasis added). However, “mere temporal proximity, without more, must be ‘very

close.’” Id. (quoting Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)). A

sixth-month time span between the filing of the harassment complaint and the nonrenewal

of Plaintiff’s contract, without more, is not “very close” to establish a prima facie showing

of causation. See id. (“A three to four month disparity between the statutorily protected

expression and the adverse employment action is not enough.”).

Moreover, MCBOE has articulated a nonretaliatory basis for not renewing

Plaintiff’s contract: Defendant Nelson testified that he recommended nonrenewal because

he was unsure that there would be a position available for Plaintiff at McKee in the 2017-

18 school year. (Doc. No. 126-5 at 3-4.) Nevertheless, for her Title VII retaliation claim,

Plaintiff has not come forward with any argument or evidence to demonstrate pretext at the

final stage of the McDonnell Douglas burden-shifting framework.

Accordingly, MCBOE is entitled to summary judgment on Plaintiff’s claim that it

retaliated against her in violation of Title VII when it chose not to renew her contract.

Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008) (holding that, in

the context of a Title VII retaliation claim, “[t]he plaintiff bears the ultimate burden of

proving retaliation by a preponderance of the evidence and that the reason provided by the

employer is a pretext for prohibited retaliatory conduct.”).

G. Deliberate Indifference/Fourteenth Amendment Equal Protection Claim

(Count Eight)

1. The Legal Basis for Count Eight

At the outset, it is necessary to determine under what legal authority Plaintiff is

attempting to proceed with Count Eight of her Complaint. Plaintiff’s pleadings and briefs

are somewhat opaque on this point.

In Count Eight, Plaintiff alleges that Defendants were “deliberately indifferent to

the discriminatory acts of Vincent Johnson.” (Doc. No. 1 at ¶¶ 87-88.) As framed in the

Complaint, the claim is thus premised on Defendants’ alleged deliberately indifferent

response to sexual harassment in the workplace.16 In the Complaint, Plaintiff styles this

claim as “COUNT EIGHT DELIBERATE INDIFFERENCE-EQUAL PROTECTION

14th AMENDMENT,” but she also specifically references Title VII among her allegations

with respect to this claim. (Doc. No. 1 at 15, ¶ 89.) In the parties’ joint stipulations, the

parties agree that Plaintiff brings her deliberate indifference claims pursuant to the

Fourteenth Amendment’s equal protection guarantee of freedom from sex discrimination.

(Doc. No. 108 at 22.)

16 In Plaintiff’s brief in opposition to Defendants’ summary judgment motion, she also alleges

violations of the FMLA with respect to Count Eight. She does not explain how the alleged FMLA

violations involve deliberate indifference, equal protection, or the Fourteenth Amendment. (Doc.

No. 130 at 10-11.) Because Plaintiff did not explain her FMLA arguments adequately, nor did she

assert in her Complaint or in the parties’ joint stipulations that Count Eight was in any way

premised on FMLA violations, the Court disregards Plaintiff’s FMLA arguments with respect to

Count Eight.

In her principal summary judgment brief, Plaintiff primarily cites Title IX17

deliberate indifference cases, not Title VII or equal protection cases. (Doc. No. 123 at 20-

23.) However, in citing to and quoting from those Title IX cases, Plaintiff omits any

reference to Title IX, and, in at least one instance, uses ellipses to scrub a reference to Title

IX from the middle of a quoted sentence. (Doc. No. 123 at 21 (quoting Doe v. Dallas Indep.

Sch. Dist., 220 F.3d 380, 384 (5th Cir. 2000)). In addition, she made no effort to explain

how Title IX might apply in this case. (Doc. No. 108 at 22-25.) More to the point, Plaintiff

did not cite Title IX in her Complaint, nor did she do so in the parties’ joint stipulations.

As reflected in their briefs, Defendants have not understood Count Eight to be a Title IX

claim.

Upon consideration of the Complaint, the parties’ joint stipulation, and the parties’

briefs, the Court concludes that Count Eight is not a Title VII or Title IX claim. Rather,

Count Eight is a claim by way of 42 U.S.C. § 198318 that Defendants violated the

17 Title IX of the Education Amendments of 1972, Pub.L. 92–318, 86 Stat. 373, as amended, 20

U.S.C. §§ 1681, et seq., generally prohibits a recipient of “Federal financial assistance” from

subjecting any person to discrimination “on the basis of sex.” 20 U.S.C. § 1681; Jackson v.

Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005).

18 In her Complaint and on summary judgment, Plaintiff does not plead § 1983 as the basis of

Count Eight. However, § 1983 creates a civil action for deprivation of rights afforded by the United

States Constitution, and, in Count Eight, Plaintiff is seeking monetary and injunctive remedies for

alleged violation of her constitutional rights. 42 U.S.C. § 1983; Albright v. Oliver, 510 U.S. 266,

271 (1994) (holding that § 1983 is not an independent source of substantive rights, but merely

serves a vehicle for vindicating federal rights conferred by the Constitution or other federal law).

Defendants understand Count Eight to be a § 1983 claim, so there is no prejudice to Defendants

by generously construing Count Eight as one arising under § 1983. (Doc. No. 131-1 at 52.)

Fourteenth Amendment equal protection guarantee against sex discrimination in public

employment by being deliberately indifferent to Plaintiff’s September 16, 2016 harassment

complaint and to ongoing sexual harassment after that date. Cf. Perkins v. Holder, No. CV-

11-RRA-03679-S, 2012 WL 13042709, at *12 (N.D. Ala. July 2, 2012) (“Count Two

alleges ‘deliberate indifference and failure to prevent violation of Title VII rights.’ The

‘deliberate indifference’ language, usually used in [§] 1983 claims against municipalities,

makes this count also appear to be a [§] 1983 claim.”).

2. Deliberate Indifference/Fourteenth Amendment Equal Protection Claim

Against MCBOE

“The Equal Protection Clause confers a federal constitutional right to be free from

sex discrimination” at the hands of the government. Williams v. Bd. of Regents of Univ.

Sys. of Georgia, 477 F.3d 1282, 1300 (11th Cir. 2007); see Albright v. Oliver, 510 U.S.

266, 271 (1994) (“The first step in [evaluating a § 1983 claim] is to identify the specific

constitutional right allegedly infringed.”). Plaintiff argues that MCBOE violated her

Fourteenth Amendment equal protection right to be free from sexual discrimination in the

public workplace by being deliberately indifferent to sexual harassment after Plaintiff

notified MCBOE about it on September 16, 2016.19 (Doc. No. 108 at 22-25; Doc. No. 123

at 20-22.)

To prevail on her § 1983 claim, Plaintiff must show that (1) by being deliberately

indifferent to known sexual harassment, MCBOE deprived Plaintiff of her Fourteenth

19 Plaintiff does not allege that any Defendant was deliberately indifferent to sexual harassment

before September 16, 2016, when she reported the harassment to Defendant Nelson and Assistant

Principal Williams.

Amendment right to be free from sex discrimination in the public workplace, and (2) that

MCBOE deprived her of that right while acting under color of state law. 42 U.S.C. § 1983.

As explained in detail in Section VI.D. of this Memorandum Opinion and Order,

Plaintiff submitted no substantial evidence from which a reasonable factfinder could

conclude that Johnson continued to subject Plaintiff to sexual harassment after September

16, 2016, when MCBOE first learned of Plaintiff’s allegations against Johnson and

immediately initiated its investigation and response. Garczynski v. Bradshaw, 573 F.3d

1158, 1165 (11th Cir. 2009) (holding that “[a] ‘mere scintilla’ of evidence is insufficient;

the non-moving party must produce substantial evidence in order to defeat a motion for

summary judgment.”). Moreover, Plaintiff never reported to administration the three brief

interactions she had with Johnson after September 16, 2016, nor has she provided any

evidence to indicate MCBOE should have otherwise known about or anticipated those

interactions. (Doc. No. 108 at 6.) See Hill v. Cundiff, 797 F.3d 948, 977 (11th Cir. 2015)

(holding that a school board had no § 1983 equal protection liability where the plaintiff did

not present sufficient evidence to satisfy the deliberate indifference standard under § 1983,

which “is a stringent standard of fault, requiring proof that a municipal actor disregarded a

known or obvious consequence of his action.’” (quoting Bd. of Cty. Comm’rs of Bryan Cty.,

Okl. v. Brown, 520 U.S. 397, 404 (1997) (emphasis added)).

Therefore, Plaintiff has not met her burden to provide substantial evidence that

MCBOE’s actions after learning of the sexual harassment complaint constituted deliberate

indifference or deprived her of her Fourteenth Amendment equal protection right to be free

from discrimination on the basis of her gender. MCBOE is entitled to judgment as a matter

of law on Plaintiff’s § 1983 equal protection claim. Cf. Hartley v. Parnell, 193 F.3d 1263,

1269 (11th Cir. 1999) (holding that a school superintendent was not liable for the plaintiff’s

§ 1983 equal protection claim because there was no evidence that the plaintiff suffered

“further sexual abuse” at school after the superintendent learned of the abuse).

3. Fourteenth Amendment Equal Protection Claim Against All Defendants Other

Than MCBOE

All Defendants except MCBOE allege that the § 1983 equal protection claims

against them in their official capacities are due to be dismissed as duplicative of Plaintiff’s

Fourteenth Amendment claims against MCBOE. Plaintiff argues that her official capacity

claims are necessary so that the court can afford complete injunctive relief. However,

Plaintiff has not identified any injunctive relief that requires the presence of any official

capacity Defendant in addition to MCBOE. Nor has Plaintiff provided substantial evidence

of an equal protection deprivation after Defendants first learned of and responded to her

harassment complaint,20 as would be necessary for her to recover relief of any kind under

Count Eight of the Complaint. Accordingly, Plaintiff’s official capacity claims against all

Defendants except MCBOE are due to be dismissed. Kentucky v. Graham, 473 U.S. 159,

166 (1985) (“As long as the government entity receives notice and an opportunity to

respond, an official-capacity suit is, in all respects other than name, to be treated as a suit

against the entity.”). Cf. Zachery v. Coosa Cnty. Bd. of Educ., No. 2:18-CV-982-ECM,

2019 WL 4054965, at *3 (M.D. Ala. Aug. 27, 2019) (rejecting the plaintiff’s argument that

potential equitable relief justified official capacity claims against a school system

20 See Section VI.G.2. of this Memorandum Opinion and Order.

superintendent and dismissing those claims as duplicative of claims against the school

board).

All Defendants other than MCBOE argue that they are entitled to qualified

immunity on Plaintiff’s personal capacity Fourteenth Amendment equal protection claims.

“So long as a government official acts within the scope of his discretionary authority and

does not violate clearly established law, the doctrine of qualified immunity protects” that

official “not only from civil liability, but also from suit and its concomitant burdens.”

Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1281 (11th Cir. 1998).

On summary judgment, a two-part analysis is used for analyzing the applicability

of a public official’s qualified immunity defense. Ansley v. Heinrich, 925 F.2d 1339, 1346

(11th Cir. 1991). First, “the public official must prove that he was acting within the scope

of his discretionary authority when the wrongful acts alleged occurred.” Id. In this case,

the parties have stipulated “that the individual Defendants were acting within the scope of

their discretionary authority” with respect to the allegations in Count Eight. (Doc. No. 108

at 25.) Second, once the public official establishes that he or she was acting within the

scope of his or her discretionary authority, the burden shifts to the plaintiff to “prove that

the official’s conduct violated clearly established law.” Id.

In response to Defendants’ uncontradicted showing that they were acting within

their discretionary authority, Plaintiff has raised no argument; thus she has not even

attempted to satisfy her burden to overcome the qualified immunity defense. Moreover, in

the parties’ joint stipulations, the parties agreed that, with respect to Count Eight, the

“clearly established constitutional right” at issue was the “right to be free from sexual

harassment in [Plaintiff’s] employment.” (Doc. No. 108 at 25.) As explained in Sections

VI.D. and VI.G.2. of this Memorandum Opinion and Order, Plaintiff has not provided

substantial evidence that she was subjected to sexual harassment in the workplace after she

notified Defendants about the harassment on September 16, 2016. Because Plaintiff has

not demonstrated that Defendants’ conduct caused any violation of her “clearly

established” right to be free from sexual harassment in the workplace, Plaintiff has not met

her burden to overcome the qualified immunity defense in this case.

Therefore, the individual capacity claims against all Defendants other the MCBOE

are due to be dismissed on grounds of qualified immunity.

H. State Law Claims: Negligence and Wantonness (Counts Nine and Ten)

In her Complaint (Counts Nine and Ten), Plaintiff alleges that Defendants21

negligently and wantonly failed to follow MCBOE’s own sexual harassment policies and

failed to adequately investigate, prevent, remedy, and correct the sexual harassment by Mr.

Johnson.22 (Doc. No. 1 at ¶¶ 92-119.)

21 Plaintiff asserts Counts Nine and Ten against all Defendants. However, with the likely exception

of Defendants MCBOE, Johnston, and Nelson, she has not articulated what specific conduct gives

rise to her claims under Counts Nine and Ten.

22 In her Complaint and in her own initial summary judgment brief, Plaintiff frames her negligence

and wantonness claims around the handling of her sexual harassment complaint. (Doc. No. 1 at ¶¶

92-119.) However, in the parties’ joint stipulations and in her response to Defendants’ motion for

summary judgment, Plaintiff also asserts that Defendants negligently and wantonly failed to

comply with MCBOE and federal FMLA policies and procedures. (Doc. No. 108 at 25-26; Doc.

No. 130 at 11.) Because Plaintiff made no allegation in her complaint of negligent and wanton

failure to comply with FMLA law and MCBOE FMLA policies, and because Plaintiff has not

provided any legal authority establishing that Alabama places a common law duty on employers

to follow the FMLA and their own FMLA policies, the Court does not consider Plaintiff to have

asserted tort claims for negligent and wanton violation of the FMLA or MCBOE’s FMLA policies.

At the outset, the Count Nine and Ten official capacity claims against defendants

Ann Roy Moore, Robert Porterfield, Lisa Keith, W. Durden Dean, Eleanor Dawkins, Mary

Briers, Melissa Snowden, Arica Watkins-Smith, Patrick Nelson, and John Johnston are due

to be dismissed. As explained in Section VI.G.3. of this Memorandum Opinion and Order,

those claims are duplicative of Plaintiff’s claims against MCBOE. See Hinson v. Holt, 776

So. 2d 804, 810 (Ala. Civ. App. 1998) (“‘Claims against officers in their official capacity

are ‘functionally equivalent’ to claims against the entity they represent.’” (quoting Godby

v. Montgomery County Bd. of Educ., 996 F. Supp. 1390, 1403 (M.D. Ala.1998))).

To state a negligence cause of action, a plaintiff must allege four elements:

(1) duty; (2) breach; (3) causation; and (4) damages. Martin v. Arnold, 643

So. 2d 564, 567 (Ala. 1994). To state a wantonness cause of action, a plaintiff

must allege “that the defendant, with reckless indifference to the

consequences, consciously and intentionally did some wrongful act or

omitted some known duty .... [and] that act or omission must proximately

cause the injury of which the plaintiff complains.” Id.

Ellis v. Advanced Tech., Servs., Inc., No. 3:10-CV-555-WHA, 2010 WL 3526169, at *4

(M.D. Ala. Sept. 3, 2010).

Defendants argue that Plaintiff has failed to establish that they had a common law

duty under Alabama law to comply with its own harassment policies and to prevent,

remedy, and correct the harassment.23 Plaintiff has failed to come forward with any

argument or legal authority on this point. Further, as Defendants point out, Plaintiff has

failed to cite any evidence that she was injured because of any failure on their part to

comply with Title VII and MCBOE policy or to adequately investigate, prevent, remedy,

23 Plaintiff does not allege that Defendants negligently or wantonly supervised Johnson.

or correct the sexual harassment. As explained in Section VI.D. of this Memorandum

Opinion and Order, Plaintiff has not provided substantial evidence that she was subjected

to sexual harassment in the workplace after she reported that harassment on September 16,

2016. Thus, the evidence establishes that Plaintiff was not injured by Defendants’ alleged

failure to follow Title VII or MCBOE policy or investigate and remedy the situation.

Accordingly, Defendants are entitled to judgment as a matter of law on Plaintiff’s

negligence and wantonness claims (Counts Nine and Ten).

VII. CONCLUSION

For the reasons stated in this Memorandum Opinion and Order, it is ORDERED as

follows:

1. Plaintiff’s motion for summary judgment (Doc. No. 123) is DENIED.

2. Defendants’ motion for summary judgment (Doc. No. 125) is GRANTED.

3. Defendants’ motion to amend their summary judgment brief (Doc. No. 131) is

GRANTED.

4. All of Plaintiff’s claims against Defendant Montgomery County Board of Education

are dismissed with prejudice.

5. Counts One, Two, Three, Four, Five, Six, and Seven are dismissed without

prejudice as to Defendants Ann Roy Moore, Robert Porterfield, Lisa Keith, W.

Durden Dean, Eleanor Dawkins, Mary Briers, Melissa Snowden, Arica Watkins-

Smith, Patrick Nelson, and John Johnston, in their official and individual capacities.

6. Counts Eight, Nine, and Ten are dismissed with prejudice as to Defendants Ann

Roy Moore, Robert Porterfield, Lisa Keith, W. Durden Dean, Eleanor Dawkins,

Mary Briers, Melissa Snowden, Arica Watkins-Smith, Patrick Nelson, and John

Johnston, in their official and individual capacities.

7. A separate judgment shall issue.

DONE this 21st day of October, 2022.

JERUSHA T. ADAMS

UNITED STATES MAGISTRATE JUDGE

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