Opinion

Burke v. Talladega City Board of Education

Court
District Court, N.D. Alabama
Filed
Feb 21, 2024
Cited by
0 cases
Authority
More cited than 16.6%

The opinion

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

EASTERN DIVISION

SANDY BURKE,

Plaintiff,

v. Case No. 1:21-cv-1094-CLM

TALLADEGA CITY BOARD OF and consolidated case no.:

EDUCATION, et al., 1:22-cv-666-CLM.

Defendants.

MEMORANDUM OPINION

Sandy Burke sues the Talladega City Board of Education and many

individuals within the Talladega School System for discrimination based

on race, age, and disability, and for retaliation and retaliatory harassment

while she worked for the Board. The individual defendants now move to

dismiss all claims brought against them in their official capacities.

Additionally, Board CFO Leslie Bollendorf moves to dismiss Count 13

(Race Discrimination, Failure to Promote) and Count 14 (Retaliation)

against her. As explained below, the court GRANTS the defendants’

motion to dismiss in its entirety. (Doc. 54).

BACKGROUND

Sandy Burke is a white woman who has worked for the Talladega

City Board of Education for 24 years. Before that, she worked as assistant

manager at a financial institution for 10 years. Burke alleges that for at

least 10 years, while she worked for the Board, the Board only hired

African American individuals for positions. She says she did not receive

promotions and was not selected for positions even though she was more

experienced than the African American individuals selected. (Doc. 52, p.

6, ¶¶ 19-24).

Burke alleges several instances over seven years in which the Board

did not select her for various positions. Burke now sues the Talladega City

Board of Education and individual defendants within the Talladega

School System for:

• Race Discrimination:

o Failure to Promote (Counts 1-4 and 13)

o Disparate Treatment (Count 11)

• Age Discrimination: Failure to Promote (Count 5)

• Disability Discrimination: Failure to Promote (Count 6)

• Retaliation (Counts 7-10 and 14)

• Retaliatory Harassment/Hostile Work Environment (Count 12).1

Along with suing the Board, Burke sues Cynthia Watts (Principal),

Leslie Bollendorf (Board CFO), Terry Roller (Superintendent), Tony Ball

(Superintendent), and Gloria Thomas (student services) in their

individual and official capacities. (Doc. 52, pp. 3-4, ¶¶ 6-10).

Before Burke filed her fourth amended complaint (doc. 52), the

Board and many individual defendants moved to dismiss her Race

Discrimination (Failure to Promote) and Retaliation claims against them

under 42 U.S.C. § 1981 (by and through § 1983). (Docs. 26, 27). The court

issued an opinion granting in part and denying in part the defendants’

motions. (Doc. 32). Burke then moved to consolidate this case (Case No.

1:21-cv-1094) with a similar case (Case No. 1:22-cv-666), and the court

granted her motion to consolidate. (Doc. 36).

In response to Burke’s fourth amended complaint, individual

defendants Watts, Bollendorf, Roller, Ball, and Thomas collectively move

the court to dismiss all official capacity claims asserted against them. And

Bollendorf moves to dismiss Count 13 (Race Discrimination, Failure to

Promote) and Count 14 (Retaliation) against her. (Doc. 54).2

1 Burke’s causes of action are stated here as alleged in her fourth amended complaint. (Doc. 52).

2 In this court’s memorandum opinion and order addressing the defendants’ motions to dismiss

plaintiff’s first amended complaint, the court dismissed the same claims: race discrimination

(failure to promote) and retaliation, against all individual defendants except Superintendents

Roller and Ball. (See Doc. 32).

Drawing on its previous ruling (doc. 32) and the reasons stated

below, the court will DISMISS all official capacity claims asserted against

individual defendants Watts, Bollendorf, Roller, Ball, and Thomas. The

court will also DISMISS both Count 13 (Race Discrimination, Failure to

Promote) and Count 14 (Retaliation) against Bollendorf in her individual

capacity.

STANDARD OF REVIEW

“To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. The court accepts the plaintiff’s well-pleaded

allegations as true and makes reasonable inferences in her favor. Crowder

v. Delta Air Lines, Inc., 963 F.3d 1197, 1202 (11th Cir. 2020). But those

“[f]actual allegations must be enough to raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555. And the court disregards

both conclusory statements and “[t]hreadbare recitals of the elements of

a cause of action.” Iqbal, 556 U.S. at 678.

DISCUSSION

Section 1981 prohibits race discrimination and retaliation in

connection with employment contracts. But Section 1983 “constitutes the

exclusive federal remedy for violation by state actors of the rights

guaranteed under § 1981.” Bryant v. Jones, 575 F.3d 1281, 1288 n.1 (11th

Cir. 2009). Other than causation, these Section 1981 claims use the same

requirements of proof and the same analytical framework as claims under

Title VII of the Civil Rights Act of 1964. 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). As for

causation under Section 1981, the plaintiff “bears the burden of showing

that race was a but-for cause of [her] injury.” Comcast Corp. v. Nat’l Ass’n

of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1014 (2020).

A. Official Capacity Claims

Individual defendants Watts, Bollendorf, Roller, Ball, and Thomas

collectively move the court to dismiss all official capacity claims asserted

against them in Counts 1-4 and 7-14. (Doc. 54, p. 1). They argue that any

official capacity claims against them are redundant of the claims against

the Board. (Doc. 54, pp. 3-4).

“Because suits against a municipal officer sued in his official

capacity and direct suits against municipalities are functionally

equivalent, there no longer exists a need to bring official-capacity actions

against local government officials, because local government units can be

sued directly.” Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir.

1991). As the circuit court reasoned in Busby, “[t]o keep both the City and

the officers sued in their official capacity as defendants in this case would

have been redundant and possibly confusing to the jury.” Id.

As stated in the court’s memorandum opinion on the defendants’

motion to dismiss Burke’s first amended complaint, all official-capacity

race-discrimination claims alleged against the individual defendants are

redundant of those against the Board. See Cook v. Randolph Cnty., 573

F.3d 1143, 1149 (11th Cir. 2009); Busby, 931 F.2d at 776; Harris by &

through Davis v. Autry, No. 20-13480, 2022 WL 392169, at *6 (11th Cir.

Feb. 9, 2022). And this rule applies “when [a municipal] officer is sued

under Section 1983.” Busby, 931 F.2d at 776. So the rule applies equally

to Burke’s race-discrimination claims brought by and through § 1983

(Counts 1-4, 11, 13, and 14) and to Burke’s retaliation claims brought by

and through § 1983 (Counts 7-10 and 12). Accordingly, the court will

DISMISS all official capacity claims against individual defendants

Watts, Bollendorf, Roller, Ball, and Thomas.

—

Before moving on to the individual counts, the court must clarify an

error in its prior opinion. The court previously dismissed all official

capacity claims against the individual defendants, but simultaneously

stated that Burke’s retaliation claim could “proceed to discovery against

the Board and against Gloria Thomas in her official capacity.” (Doc. 32, p.

13). Circuit precedent requires the court to dismiss all claims against

individual defendants redundant of those against the Board. See Busby,

931 F.2d at 776. So the court’s previous statement that Burke’s retaliation

claim could proceed against Gloria Thomas in her “official” capacity was

error. But the court reaffirms that Burke’s retaliation claim may proceed

against the Board and against Thomas in her individual capacity.

B. Individual Counts

Count 13: Race Discrimination, Failure to Promote under 42

U.S.C. § 1981 (by and through § 1983)

Because Burke brings a race discrimination claim, the court must

ultimately analyze this claim under the framework outlined in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The Eleventh Circuit

recently clarified that the ultimate question under the McDonnell Douglas

framework is “whether there is a sufficient evidentiary basis for the jury

to find that the defendant intentionally discriminated against the

plaintiff.” Tynes v. Fla. Dep’t of Juv. Just., 88 F.4th 939, 947 (11th Cir.

2023) (citing Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189,

1194 (11th Cir. 2004)). But at the pleading stage, Burke “need not allege

facts sufficient to make out a classic McDonnell Douglas prima facie case.”

Davis v. Coca-Cola Bottling Co., 516 F.3d 955, 974 (11th Cir. 2008) (citing

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002)).3 Burke must

provide “enough factual matter (taken as true) to suggest” intentional race

discrimination. Id. (quoting Twombly, 550 U.S. at 556). “This is because

McDonnell Douglas’s burden-shifting framework is an evidentiary

standard, not a pleading requirement.” Surtain v. Hamlin Terrace Found.,

3 The Supreme Court abrogated Davis on other grounds through Twombly and Iqbal. See

Doscher v. Holding, No. 22-13184, 2023 WL 6060559, at *3 (11th Cir. Sept. 18, 2023) (recognizing

abrogation); see also LaCroix v. Western Dist. of Ky., 627 F. App’x 816, 818 (11th Cir. 2015).

789 F.3d 1239, 1246 (11th Cir. 2015) (citation omitted). And allegations

that, taken as true, show but-for causation would attach liability to a

particular defendant. See Comcast Corp., 140 S. Ct. at 1014.

In Count 13, Burke alleges that she applied for the Secretary

position at R.L. Young in August 2022, that Bollendorf conducted the

interviews, and that Bollendorf did not interview Burke or select her for

the position. Burke says she was qualified for the position but an African

American applicant with far less experience or no experience at all was

selected. Burke says the Board had a custom of hiring only African

American applicants, so her race was a reason that she wasn’t selected.

(Doc. 52, pp. 67-70, ¶¶ 402-23). She also alleges in her response to

Bollendorf’s motion to dismiss that as Board CFO, “Bollendorf is the

Board” and that Bollendorf selected applicants and then recommended

them to the Board. (Doc. 58, pp. 10-12).

The court will assume (but not decide) for purposes of its analysis

that Burke’s allegations, taken as true, suggest intentional

discrimination. So Burke can proceed against Bollendorf on her race-

discrimination claim if her complaint plausibly alleges an “adequate

causal link” between Bollendorf’s allegedly unlawful conduct and Burke’s

injury. Carruth v. Bentley, 942 F.3d 1047, 1055 (11th Cir. 2019); Doc. 32,

p. 8. But Burke’s complaint fails to do so. The court even addressed this

claim against Bollendorf (among other individual defendants) previously.

See Doc. 32, p. 9. And the court found that Burke’s allegations that

Bollendorf did not provide Burke with an interview or select her for the

Secretary position do not support a finding that Burke would have

received the Secretary position but-for Bollendorf’s actions. Id. at 9-10.

But even if it did, causation does not exist “when the continuum

between Defendant’s action and the ultimate harm is occupied by the

conduct of deliberate and autonomous decision-makers.” Carruth, 942

F.3d at 1056 (citation omitted). As Board CFO, Bollendorf worked under

the superintendent.4 And the superintendent had final say in

recommending applicants for hire to the Board.5 Burke makes no

allegations in her complaint that the Board CFO was synonymous with

“the Board” to which the superintendent reported. And if she did, Burke

would be alleging claims against Bollendorf in her official capacity—which

would be redundant of Burke’s claim against the Board itself. Busby, 931

F.2d at 776. As the court has found (see doc. 32, p. 9), Superintendent

Roller and Superintendent Ball are “deliberate and autonomous decision-

makers” who stand in the way and break the causal connection between

Bollendorf’s actions and Burke not receiving the Secretary position.

Carruth, 942 F.3d at 1056.

The court previously dismissed all failure to promote claims against

the individual defendants (including Bollendorf) in this lawsuit for the

same reason. The court then allowed Burke the opportunity to amend her

complaint. In her fourth amended complaint, Burke reasserted the same

claims (Race Discrimination: Failure to Promote, and Retaliation) among

others. But the court finds no reason to stray from its previous decision

on those claims. (Doc. 32, pp. 9-10). For these reasons, the court dismisses

Count 13 (Race Discrimination, Failure to Promote) against Bollendorf.

Count 14: Retaliation under 42 U.S.C. § 1981 (by and through

§ 1983)

Burke brings a retaliation claim in Count 14 under 42 U.S.C. §

1981.6 “To establish a claim of retaliation under Title VII or section 1981,

4 See Ala. Code. § 16-13A-5 (“The chief school financial officer shall work under the direct

supervision of the local superintendent of education but shall have a fiduciary responsibility to

the local board of education.” (emphasis added)).

5 See Ala. Code § 16-12-19 (“The city board of education shall, upon the recommendation of the

city superintendent of schools, employ such professional, clerical, accounting and statistical

assistants as, in the judgment of the board, are necessary.” (emphasis added)).

6 While Burke does not specify in her complaint under which statute she brings her retaliation

claim, in her response to the pending motion to dismiss (doc. 54), she alleges that she has “pled

plausible Section 1981 discrimination and retaliation claims against Bollendorf.” (Doc. 58, p.

15). So the court construes her retaliation claim as pled under 42 U.S.C. § 1981. But even if

Burke intended to bring her retaliation claim under Title VII, both statutes require the same

a plaintiff must prove that he engaged in statutorily protected activity, he

suffered a materially adverse action, and there was some causal relation

between the two events.” Goldsmith v. Bagby Elevator Co., 513 F.3d 1261,

1277 (11th Cir. 2008) (citing Burlington, 548 U.S. 53). So at the pleading

stage, Burke must allege sufficient facts to plausibly suggest these three

elements are present.

Burke alleges that she engaged in protected activity by filing an

EEOC discrimination charge in March 2022 and by filing this lawsuit. She

says that since then, the Board and Leslie Bollendorf retaliated against

her by (1) not providing her an interview when she applied for the

Secretary position at R.L. Young in August 2022 and (2) not selecting her

for that position. Burke says that the defendants’ conduct would deter a

reasonable person from engaging in protected activity, and that

retaliation against her was a motivating factor underlying the decision to

not interview or select her for the position. (Doc. 52, pp. 70-71, ¶¶ 424-27).

First, the court finds that Burke engaged in statutorily protected

activity when she filed her EEOC complaint. See Doc. 32, p. 11 (citing

Pipkins v. City of Temple Terrace, 267 F.3d 1197, 1201 (11th Cir. 2001)).

And Burke alleges that Bollendorf “actually knew about” the EEOC

charge because she was interviewed about the charge within two months

of its filing. Martin v. Fin. Asset Mgmt. Sys., Inc., 959 F.3d 1048, 1053

(11th Cir. 2020); Doc. 52, p. 19, ¶ 113.

Second, Burke suffered a materially adverse action. The failure to

hire Burke is a materially adverse employment action because, as she

correctly notes, not being interviewed or selected for the Secretary

position could “dissuade[] a reasonable worker from making or supporting

a charge of discrimination.” Crawford v. Carroll, 529 F.3d 961, 974 (11th

Cir. 2008) (citation omitted).

But Burke has not plausibly alleged causation. Burke must

plausibly allege facts that would prove Bollendorf’s retaliatory motive was

proof and analytical framework. Berry v. Crestwood Healthcare LP, 84 F.4th 1300, 1307 (11th

Cir. 2023) (citing Standard, 161 F.3d at 1330)).

a but-for cause of her rejection. See Comcast Corp., 140 8. Ct. at 1014.

Burke alleges that Bollendorf did not interview her or select her for the

Secretary position at R.L. Young when she applied in August 2022. But

her allegations do not support a finding that Burke would have received

the Secretary position but-for Bollendorf’s actions. See Doc. 32, p. 9.

And again, even if Burke plausibly alleged that Bollendorf’s actions

were a but-for cause of her rejection, the superintendent—not the Board’s

CFO—has the sole responsibility under Alabama law to make final

employment recommendations to the Board. See Ala. Code § 16-12-19. So

Superintendent Roller and Superintendent Ball are “deliberate and

autonomous decision-makers” who stand in the way and break the causal

connection to any alleged retaliatory motive or action of Bollendorf’s.

Carruth, 942 F.3d at 1056 (citations omitted). So the court similarly

dismisses Count 14 (Retaliation) against Leslie Bollendorf.

CONCLUSION

For these reasons, the court will DISMISS all official capacity

claims asserted against individual defendants Watts, Bollendorf, Roller,

Ball, and Thomas. The court will also DISMISS both Count 13 (Race

Discrimination, Failure to Promote) and Count 14 (Retaliation) against

Bollendorf in her individual capacity.

DONE and ORDERED on February 20, 2024.

COREY @%. MAZE

UNITED STATES DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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