# Simmons v. Mobile County Board of School Commissioners

> District Court, S.D. Alabama · December 18, 2023

URL: https://www.frixlaw.com/law-library/cases/9993362

## Case

- **Court:** District Court, S.D. Alabama
- **Decided:** December 18, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- applying the standard for protected activity in a Title VII case

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

HENRY SIMMONS, JR., )
)
Plaintiff, )
)
vs. ) Civil Action No. 1:22-00386-KD-N
)
MOBILE COUNTY BOARD OF SCHOOL )
COMMISSIONERS, )
)
Defendant. )

ORDER
This matter is before the Court on Defendant Mobile County Board of School
Commissioners’ (“Defendant” or the “Board”) Motion for Summary Judgment, (Doc. 37), and
evidentiary material in support thereof, Plaintiff Henry Simmons, Jr.’s (“Simmons” or
“Plaintiff”) Response, (Doc. 44), and evidentiary material in support thereof, and the Board’s
Reply, (Doc. 45). Upon consideration and for the reasons set forth herein, it is ORDERED that
the Board’s Motion for Summary Judgment, (Doc. 37), is GRANTED.
I. BACKGROUND
In 2019, Plaintiff Simmons sued his former employer, Washington County Board of
Education (“Washington County”), for race discrimination under Title VII. (Doc. 37 at 2; Doc.
44 at 1-2, 10); see Henry Simmons v. Wash. Cnty. Bd. of Educ., No. 1:19-CV-00743-TFM-N
(S.D. Ala. 2022). The Board was not a party to this lawsuit. (Doc. 37 at 2; Doc. 44 at 1-2).
Simmons and Washington County settled the lawsuit and, consistent with the settlement,
Simmons was placed on administrative leave from Washington County and received full pay and
benefits up to the date of his retirement. (Doc. 37 at 2; Doc. 44 at 3).
On or about January 12, 2022, four months prior to his retirement from Washington County,
Simmons applied for a position with the Mobile County Public School System (the “School
System”) as a physical education teacher at Scarbrough Middle School. (Doc. 36-2 at 2; Doc. 36-
4 at 15, 24). Clintina Pettway, Human Resources Clerk for Mobile County Public Schools,
received Simmons’ request for hire the next day. (Doc. 36-2 at 2; Doc. 36-6 at 2). Staff at

Scarbrough Middle School, including the Principal and Assistant Principal, interviewed
Simmons and informed him that they would recommend him for a position there. (Doc. 36-4 at
4); (Doc. 43-1 at 3). A “Request to Hire” from Mobile County Public Schools lists January 24,
2022, as Simmons’ “start/hire date.” (Doc. 43-6). Simmons submitted a drug test and fingerprints
and completed a background check as part of his application process. (Doc. 36-6 at 2).
On January 26, 2022, Simmons met Pettway during a human-resources visit related to his
new-hire processing at the School System’s Central Office. (Doc. 36-2 at 2; Doc. 36-4 at 5).
During that meeting, Simmons worked on onboarding paperwork. (Doc. 36-4 at 7). According to
Simmons’ deposition, at that point he stopped and told Pettway that he “didn’t want Blue

Cross/Blue Shield insurance and [he] didn’t want [his] retirement taken out at the time.” (Id.).
Simmons stated that Pettway told him that would not be a problem. (Id. at 8). He also indicated
that he made this request because he was advised by his lawyer to do so. (Id.). According to
Pettway’s affidavit, it was during this meeting that Simmons disclosed that he was on paid
administrative leave through the end of the 2021/2022 school year. (Doc. 36-2 at 2).
In an email summary two months later, Pettway wrote to Bryan Hack, Executive Manager of
Human Resources for the School System,
During Mr. Simmons [sic] HR visit, he disclosed he was on Administrative Leave with
Washington County until 05/31/22. I was made aware of his administrative leave status when
I was going over the Statement of teaching experience form with Mr. Simmons. Mr.
Simmons asked that “we DO NOT” contact his previous district. Moreover, he was not
worried about the experience from that district. I then inquired about the number of years he
was forfeiting, he then asked me to move in closer and could I keep this between him and I.
It was at this moment in our visit Mr. Simmons said that he could not have insurance and
participate in RSA.

I then asked Gretchen Lang for assistance because I was told that RSA contributions were
mandatory. After reviewing Mr. Simmons [sic] RSA membership status, he was still showing
active with Washington County and I made Ms. Nina Hayes1 aware of his administrative
leave status. Ms. Hayes asked me to bring Mr. Simmons into her office. Ms. Hayes then
explained that I had brought to her attention that he was on administrative leave and asked
him could he prove information on his status. Mr. Simmons said that his lawyer told him to
apply for other positions and he had documentation of his settlement with Washington
County. Ms. Hayes explained to Mr. Simmons that he could not be paid by two systems at the
same time. Mr. Simmons kept stating that his administrative leave was part of his settlement
and his lawyer told him he could apply for other positions. Ms. Hayes told Mr. Simmons that
once the school term was over, it may be possible for him to reapply for the 2022-2023
school year. Mr. Simmons said “thank you” and I walked him to the front door.

I canceled Mr. Simmons’ request to hire and submitted to have his named [sic] removed from
the board agenda on Wednesday, January 26, 2022, after his HR visit.

(Doc. 43-2).
Simmons conceded that, during both the meeting with Pettway and the meeting in Hayes’
office, he never revealed to Pettway or Hayes why he was on administrative leave with the
Washington County School System. (Doc. 36-4 at 17); see also (Doc. 36-2 at 3) (Pettway’s
affidavit denying that Simmons disclosed the reasons for why he was on paid administrative
leave and even that he engaged in litigation with Washington County); (Doc. 36-5 at 5) (Hayes’
deposition rejecting that Simmons ever mentioned that he was involved in litigation and may
have a confidential settlement incident thereto); (Doc. 43-17 at 2) (Hayes’ affidavit denying that
Simmons disclosed the reasons for why he was on paid administrative leave and even that he
engaged in litigation with Washington County).
Simmons also claimed that in the meeting in Hayes’ office, Hayes was “fussing and hollering
and screaming.” (Doc. 43-3 at 3). Simmons maintained that in reference to his lawsuit against

1 Nina Hayes is Personnel Administrator for the School System. (Doc. 36-5 at 2).
Washington County, Hayes told him, “I don’t want to go into the Washington County mess.” (Id.
at 2, 4). Hayes allegedly had no interest in speaking to Simmons’ attorney and indicated that she
had already talked to Bryan Hack and “somebody else she named out.” (Id. at 4). Simmons
averred in his declaration that “Washington County mess” referred to Simmons’ prior lawsuit
against Washington County. (Doc. 43-1 at 4).

It was during this meeting in Hayes’ office that she informed Simmons that the School
System would not move forward with the request to hire “due to the fact that he was employed in
another system” [in Alabama]. (Doc. 36-5 at 3-4); see also (Doc. 43-12) (email from Hayes to
Claudia Baker dated January 27 in which Hayes wrote, “During the meeting, Simmons was
informed that due to his employment in Washington County, Mobile County would not move
forward with the request to hire.”). Following the meeting in Hayes’ office, Hayes told Pettway
that because of Simmons’ simultaneous employment with another school district in the state, “we
would need to cancel the request to hire.” (Doc. 36-5 at 7). Indeed, Pettway initially went to
Hayes during Simmons’ January 26 visit to address Simmons’ “double dipping” concern. (Id. at

8).
An email from Bryan Hack to Lakesha Brackins2 that same morning reads,
Here is a crazy situation. Scarbrough recommended Simmons who is apparently the brother
of Dr. Ferrell. DH has been interested (per the pa) in his hire as well. He went to the board
Monday, passed background, etc. He came in today for his HR visit and advised that he
doesn’t want insurance, benefits or anything because he is still employed at Washington
County as a teacher, albeit on administrative leave with pay. He didn’t say for what, but we
are investigating. He is trying to double dip. I instructed the PA to reach out to Washington
County to find out anything she could. I asked her to tell him he can’t start for us while
employed there and to give us a resignation.

Just because he is on admin. leave doesn’t mean that he can’t be hired, but we need more
info. of course.

Just keeping you posted.

2 Lakesha Brackins is Deputy Superintendent of Academics at Mobile County Public Schools. (Doc. 36-7).
(Doc. 36-7 at 2). Hack testified in his deposition that the Retirement System of Alabama has a
specific rule that prevents getting paid by two of their entitles at the same time. (Doc. 36-3 at 3).
He explained that in an attempt to investigate the reasons behind Simmons’ administrative leave
status, he called over to Washington County Public Schools and asked that their human resources
director call him back. (Id. at 4). He testified, “[W]hat we thought was going on was that Mr.
Simmons was facing disciplinary administrative leave and facing termination. The termination
letter should be in the personnel file. That’s what we were trying to get and find out what’s going
on.” (Id. at 7-8). Despite calling twice, Washington County officials never returned his calls. (Id.
at 8). Per Hack’s affidavit, “Almost all of the teachers that have been placed on administrative

leave during [his] time as the Executive Manager of Human Resources were placed on
administrative leave pending investigations into allegations of violations of Board policy, Board
procedures, Ethical Violations, committing crimes, allegations of abuse and other types of
misconduct.” (Doc. 36-1 at 2). He was unaware of a teacher being placed on administrative leave
because of their engagement in “protected conduct.” (Id.).
On March 28, 2022, the U.S. Equal Employment Opportunity Commission Mobile Local
Office (“EEOC”) sent to Hack a Notice of Charge of Discrimination (“Notice”) that Simmons
had filed against the Board under Title VII of the Civil Rights Act of 1964 (“Title VII”). (Doc.
18-1). That same day, in response to an email from Hack requesting “whatever [she] has” on
Simmons, Hayes wrote,

Simmons is the applicant who is on administrative leave from Washington County. In [sic]
informed Tina during the hiring process that he did not want insurance or retirement taken
out of his check because it was being taken out in Washington County. That is when he
informed Tina that he was on administrative leave. After speaking with you concerning the
matter, the offer was withdrawn.
(Doc. 43-16).3 A March 30 email from Hayes requested that Simmons be placed in the “Do Not
Hire, Do Not Substitute” module for “good and just causes.” (Doc. 43-15 at 1). Pettway then sent
in response that Simmons was placed in the “Do Not Hire” module and that his applicant status
was changed to “Not Eligible for Work.” (Id.). In her affidavit from the same day, Hayes
referenced Simmons’ job application where Simmons declared that he had never “been placed on

leave by an employer or left such employment prior to the end of the employment term.” (Doc.
43-17 at 1); (see also Doc. 43-5 at 3) (listing “No” in response to “Have you ever . . . been placed
on leave by an employer or left such employment prior to the end of the employment term?”).
On September 28, 2022, Simmons brought this lawsuit against the Board. (Doc. 1). On
October 13, 2023, Simmons received from the EEOC his Notice of Right to Sue Within 90 Days.
(Doc. 31-1). On October 20, 2023, this Court granted Simmons leave to file a First Amended
Complaint which does not contain any claims based upon his placement on the do-not-hire list.
(Doc. 32 at 5). In Count I of the First Amended Complaint, Simmons alleges retaliatory recission
of an employment offer in violation of 42 U.S.C. § 1981, made actionable against the Defendant

by 42 U.S.C. § 1983. (Doc. 35 at 7). Count II asserts the same factual predicate but under Title
VII. (Id. at 7-8). Simmons prays for the following as relief: declaratory judgments that Defendant
has violated the anti-discrimination/retaliation provisions of Section 1981 and Title VII by
rescinding an offer of employment; a court order that Plaintiff be hired to a comparable position
with full back pay and benefits; $500,000 in compensatory damages; and costs and expenses in
bringing the action, including attorney’s fees. (Id. at 8).

3 The Pettway-Hack email summary cited above, (Doc. 43-2), was also in response to Hack’s email requesting
information on Simmons.
II. LEGAL STANDARD
District courts shall grant summary judgment when the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). The movant always bears the initial responsibility of informing the
district court of the basis for its motion and identifying the parts of the “pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any” that
demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986); Fed. R. Civ. P. 56(c). The non-moving party generally must use these same
categories of evidence to support the inference that a material fact is genuinely disputed. Fed. R.
Civ. P. 56(c). The substantive law identifies which facts are material. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (11th Cir. 1986). “Only disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of summary
judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id.; see also
Cunningham v. AutoZoners, LLC, No. 12-CV-00538-KD-B, 2013 WL 6008566, at *6 (Nov. 13,

2013) (“However, the mere existence of any factual dispute will not automatically necessitate
denial of a motion for summary judgment; rather, only factual disputes that are material preclude
entry of summary judgment.”).
“[T]o survive summary judgment [on a discriminatory retaliation claim], the employee must
present a story, supported by evidence, that would allow a reasonable jury to find the employer
engaged in unlawful retaliation against the employee.” Berry v. Crestwood Healthcare, LP, 84
F.4th 1300, 1311 (11th Cir. 2023). The court must view the evidence in the light most favorable
to the employee and draw all reasonable inferences in his favor. Id. “But inferences in favor of a
plaintiff can be based only on evidence – not on speculation.” Martin v. Fin. Asset Mgmt. Sys.,
Inc., 959 F.3d 1048, 1058 (11th Cir. 2020). Moreover, the employer will be entitled to summary
judgment if the employee “has failed to make a sufficient showing on an essential element of her
case with respect to which she has the burden of proof." Celotex, 477 U.S. at 323.
III. SUBSTANTIVE LAW
Under Title VII, it is an unlawful employment practice for an employer to discriminate

against an employee or applicant for employment4 “because he has opposed any practice made
an unlawful employment practice by this subchapter, or because he has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing under this
subchapter.” 42 U.S.C. § 2000e-3(a). This is known as Title VII’s antiretaliation provision. See,
e.g., Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 56 (2006). Section 1981 also
encompasses retaliation claims. CBOCS W., Inc. v. Humphries, 553 U.S. 442, 451-52 (2008); see
42 U.S.C. § 1981(a). Section 1981 is a civil rights statute adopted just after the Civil War that
provides, “All persons within the jurisdiction of the United States shall have the same right in
every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens.” §

1981(a). Both Title VII and Section 1981 require the same proof and employ the McDonnell
Douglas burden-shifting framework. Standard v. A.B.E.L Servs., 161 F.3d 1318, 1330 (11th Cir.
1998), abrogated on other grounds by Burlington N., 548 U.S. 53. Accordingly, Plaintiff’s Title
VII and Section 1981 retaliation claims are analyzed together.
The McDonnell Douglas framework has three steps. See McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802, 804 (1973). The framework is used in the absence of direct evidence
of employment discrimination. Standard, 161 F.3d at 1333. First, the employee must establish a

4 It is undisputed that Simmons was an applicant for employment at Defendant’s Scarbrough Middle School.
However, because the bulk of the case law refers to employees, the Court often does so too, noting that both
employees and applicants for employment are cognizable plaintiffs under Title VII.
prima facie case of employment discrimination. McDonnell Douglas, 411 U.S. at 802. He does
so in the retaliation context by showing: (1) he engaged in statutorily protected conduct; (2) he
suffered an adverse employment action; and (3) a causal relation exists between the two events.
Tolar v. Bradley Arant Boult Commings, LLP, 997 F.3d 1280, 1289 (11th Cir. 2021). Next,
provided that that the employee establishes his prima facie case, the burden shifts to the

employer to give a “legitimate, nonretaliatory reason” for the adverse action. Id. Then, if the
employer does so, the burden shifts back to the employee to establish that the reason offered by
the employer was a pretext for retaliation. Id.
An employee engages in “statutorily protected conduct” when he can show that he
believed in good faith that his employer engaged in unlawful employment practices and that his
belief was objectively reasonable in light of the facts and record presented. Anduze v. Fla. Atl.
Univ., 151 F. App’x 875, 878 (11th Cir. 2005) (applying the standard for protected activity in a
Title VII case); Bryant v. U.S. Steel Corp., 428 F. App’x 895, 898 (11th Cir. 2011) (applying the
same standard in a Section 1981 case). “By its plain language, Title VII does not require

retaliation to be based on protected activity engaged in against the defendant employer.” Bailey
v. Metro Ambulance Servs., Inc., 992 F.3d 1265, 1278 (11th Cir. 2021).
An “adverse employment action” is an ultimate employment decision that includes the
failure to hire and recission of an employment offer. See, e.g., Van Voorhis v. Hillsborough Cnty.
Bd. of Cnty. Comm’rs, 512 F.3d 1296, 1300 (11th Cir. 2008) (“An adverse employment action is
an ultimate employment decision, such as discharge or failure to hire . . . .”); Holley v. Ga. Dep’t
of Corrs., 845 F. App’x 886 (11th Cir. 2021) (assuming without expressly holding that rescinding
a job offer is an adverse employment action).
Crucially, the Supreme Court has held that a plaintiff asserting a Title VII retaliation
claim must demonstrate that his participation in the statutorily protected conduct was the “but-
for” cause of the adverse employment action. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S.
338, 360 (2013). This is unlike the lessened causation standard for discrimination claims based
on a protected status under Title VII, which merely requires that the employee show that his

protected status was a motivating factor in the adverse employment action. Id. Separately,
plaintiffs pursuing any type of Section 1981 claim must prove but-for causation. Comcast Corp.
v. Nat’l Ass’n of Afr. Am.-Owned Media, 140 S. Ct. 1009 (2020). Thus, the standard for
Simmons’ retaliation claims under Title VII and Section 1981 is but-for causation. “Where but-
for causation is required, a plaintiff with evidence of only a tagalong ‘forbidden consideration’
cannot meet her summary judgment burden because she cannot show that the unlawful
retaliation would not have occurred in the absence of the alleged wrongful action or actions of
the employer.” Yelling v. St. Vincent’s Health Sys., 82 F.4th 1329, 1340 (11th Cir. 2023).
To establish a causal connection in a retaliation claim, a plaintiff need only demonstrate

“that the protected activity and the adverse action were not wholly unrelated.” Shotz v. City of
Plantation, 344 F.3d 1161, 1180 n.30 (11th Cir. 2003) (emphasis omitted). However, the plaintiff
must generally establish at a minimum that the defendant was actually aware of the protected
conduct at the time the defendant took the adverse employment action. Raney v. Vinson Guard
Serv., Inc., 120 F.3d 1192, 1197 (11th Cir. 1997); see also Adams v. City of Montgomery, Nos.
2:11-CV-1122-WKW, 2:12-CV-523-WKW, 2013 WL 5441857, at *13 (M.D. Ala. Sep. 27, 2023)
(“An employee cannot establish retaliation without proving that the employer knew that the
employee engaged in protected activity. Without knowledge, there can be no retaliatory intent,
and thus there can be no causal connection.”) (emphasis included) (citing 1 Barbara T.
Lindemann et al., Employment Discrimination Law 15-50-15-51) (5th ed. 2012). “And while we
have held that awareness of protected expression may be established based on circumstantial
evidence,5 our cases have required plaintiffs to show a defendant’s awareness with more
evidence that mere curious timing coupled with speculative theories.” Raney, 120 F.3d at 1197.
In addition, summary judgment cannot be avoided “based on hunches unsupported with

significant probative evidence.” Id. at 1198. “Discrimination is about actual knowledge, and real
intent, not constructive knowledge and assumed intent.” Silvera v. Orange Cnty. Sch. Bd., 244
F.3d 1253, 1262 (11th Cir. 2001). It is therefore the Court’s duty to focus on the actual
knowledge and actions of the decision-maker. Walker v. Prudential Prop. and Cas. Ins. Co., 286
F.3d 1270, 1274 (11th Cir. 2002). And it is the plaintiff’s burden in alleging retaliation to set
forth significant probative evidence regarding the identity, authority, and knowledge of the
employer’s agent who is allegedly responsible for the adverse employment action. Raney, 120
F.3d at 1197. By failing to do so, no genuine issue of material fact exists for trial. Id. at 1198-99.
Once the employee makes out his prima facie case of retaliation, the burden shifts to the

employer to rebut the presumption of retaliation by producing legitimate reasons for the adverse
employment action. Johnson v. Booker T. Wash. Broad. Serv., Inc., 234 F.3d 501, 507 n.6 (11th
Cir. 2000). The defendant’s proffered explanation must be legally sufficient to justify a judgment
for the defendant. Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 255 (1981).
If the defendant carries its burden of production, the presumption raised by the prima
facie case disappears and the burden shifts back to the employee to establish that the reason
offered by the employer was a pretext for retaliation. Burdine, 450 U.S. at 255-56 (“The plaintiff
retains the burden of persuasion. [He] now must have the opportunity to demonstrate that the

5 Indeed, the McDonnell Douglas burden-shifting framework presupposes the plaintiff’s reliance on circumstantial
evidence of retaliation. See, e.g., Lee v. Russell Cnty. Bd. of Educ., 684 F.2d 769, 773-74 (11th Cir. 1982).
proffered reason was not the true reason for the employment decision. This burden now merges
with the ultimate burden of persuading the court that [he] has been the victim of intentional
discrimination.”). To prove that the employer’s explanation is pretextual, the employee must
“cast enough doubt on its veracity that a reasonable factfinder could find it unworthy of
credence.” Berry, 84 F.4th at 1307. Provided that the proffered reason is one that might motivate

a reasonable employer, the employee “must meet that reason head on and rebut it.” Gogel v. Kia
Motors Mfg. of Ga., Inc., 967 F.3d 1121, 1136 (11th Cir. 2020). To establish pretext at the
summary judgment stage, a plaintiff must point to “weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions” in the employer’s stated reason. Id. (citing Jackson v. Ala. State
Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005). “A reason is not pretext for retaliation
unless it is shown both that the reason was false, and that retaliation was the real reason.” Gogel,
967 F.3d at 1136 (alteration adopted with emphasis included). Ultimately, to avoid a summary
judgment the employee must establish a genuine dispute of material fact that the employer’s
reason is pretextual. Berry, 84 F.4th at 1308.

The McDonnell Douglas framework is not the only method for a plaintiff to successfully
rely on circumstantial evidence in an employment discrimination suit. See Smith v. Lockheed-
Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (“[E]stablishing the elements of the
McDonnell Douglas framework is not, and never was intended to be, the sine qua non for a
plaintiff to survive a summary judgment motion in an employment discrimination case.”);
Russell Cnty. Bd. of Educ., 684 F.2d at 773 (“The McDonnell Douglas framework is only one
means of proving a case of discrimination, however. It is not the exclusive means.”). Without
relying on McDonnell Douglas, an employee may prove retaliation with any circumstantial
evidence that creates a reasonable inference of retaliatory intent. Berry, 84 F.4th at 1310. Some
prior Eleventh Circuit precedents refer to this approach as the “convincing-mosaic framework.”
Id. That said, the Eleventh Circuit has used the phrase “simply to recognize that courts must
consider the totality of a plaintiff’s circumstantial evidence on summary judgment.” Yelling, 82
F.4th at 1342. “But a ‘convincing mosaic’ is a metaphor, not a legal test and not a framework . . .
The legal standard – and the question for the court at summary judgment – is only whether the

evidence permits a reasonable factfinder to find that the employer retaliated against the
employee.” Berry, 84 F.4th at 1301. That is the standard no matter how the employee presents his
circumstantial evidence. Id.
The Eleventh Circuit has previously identified three nonexclusive categories of
circumstantial evidence that can reasonably raise an inference of discriminatory conduct. Id.
They are evidence of (1) suspicious timing, ambiguous statements, or other information from
which discriminatory intent may be inferred; (2) systematically better treatment of similarly
situated employees; and (3) pretext. Jenkins v. Nell, 26 F.4th 1243, 1250 (11th Cir. 2022). No
matter whether the evidence fits within one of these neat buckets, summary judgment will be

improper if and only if the evidence raises a reasonable inference that the employer retaliated
against the employee. Berry, 84 F.4th at 1311.
IV. ANALYSIS
For purposes of this Order, the Court assumes that Simmons “engaged in statutorily
protected conduct” when he sued Washington County for race discrimination and “suffered an
adverse employment action” when officials at the School System decided not to move forward
with Simmons’ request to hire. As such, Simmons satisfies the first and second elements of his
prima facie case for employment discrimination in the retaliation context. See Tolar, 997 F.3d at
1289. Nonetheless, the Court concludes that the Board is entitled to summary judgment because
Simmons fails to provide sufficient evidence from which a reasonable jury could find that his
protected conduct caused the Board’s recission of his employment offer at Scarbrough Middle
School.
Simmons fails to sustain his burden on summary judgment because nothing in the record
supports a sufficient causal relation between Simmons’ suit against Washington County and the

Board’s subsequent recission of his employment offer at Scarbrough Middle School. Simmons’
deposition, (Doc. 36-4 at 17), Pettway’s affidavit, (Doc. 36-2 at 3), and Hayes’ deposition, (Doc.
36-5 at 5), and affidavit, (Doc. 43-17 at 2), all indicate that Simmons at no point revealed to
Pettway or Hayes why he was on administrative leave with the Washington County School
System. In addition, Hack stated in his affidavit that he was unaware of a teacher being placed on
administrative leave because of his engagement in protected conduct. (Doc. 36-1 at 1).
Simmons tries to use Pettway’s March 28 email to Hack for the proposition that the Board
was aware that Simmons had engaged in protected activity. (See Doc. 44 at 10). In pertinent part,
the email reads,

During Mr. Simmons [sic] HR visit, he disclosed he was on Administrative Leave with
Washington County until 05/31/22. I was made aware of his administrative leave status when
I was going over the Statement of teaching experience form with Mr. Simmons. Mr.
Simmons asked that “we DO NOT” contact his previous district. Moreover, he was not
worried about the experience from that district. I then inquired about the number of years he
was forfeiting, he then asked me to move in closer and could I keep this between him and I.
It was at this moment in our visit Mr. Simmons said that he could not have insurance and
participate in RSA.

I then asked Gretchen Lang for assistance because I was told that RSA contributions were
mandatory. After reviewing Mr. Simmons [sic] RSA membership status, he was still showing
active with Washington County and I made Ms. Nina Hayes aware of his administrative leave
status. Ms. Hayes asked me to bring Mr. Simmons into her office. Ms. Hayes then explained
that I had brought to her attention that he was on administrative leave and asked him could he
prove information on his status. Mr. Simmons said that his lawyer told him to apply for other
positions and he had documentation of his settlement with Washington County. Ms. Hayes
explained to Mr. Simmons that he could not be paid by two systems at the same time . . . .
(Doc. 43-2) (emphasis added). But knowledge of Simmons’ settlement with Washington County
is not the same thing as knowledge of Simmons’ settlement with Washington County incident to
a suit for race discrimination. A reasonable inference cannot be made that the mention of a
settlement would lead an employer to know that Simmons had engaged in protected conducted to
obtain that settlement. Rather, the evidence indicates that Hack, who instructed Hayes to

withdraw Simmons’ offer,6 reasonably suspected that Simmons was on disciplinary
administrative leave. (Doc. 36-3 at 7); (see also Doc. 36-1 at 2) (“Almost all of the teachers that
have been placed on administrative leave during my time as the Executive Manager of Human
Resources were placed on administrative leave pending investigations into allegation of
violations of Board policy, Board procedures, Ethical Violations, committing crimes, allegations
of abuse and other types of misconduct.”). Hack seemingly reached out to Washington County
officials to corroborate these suspicions. (Doc. 36-3 at 7-8) (“The termination letter should be in
the personnel file. That’s what we were trying to get and find out what’s going on.”). And despite
calling twice, Hack’s calls were never returned. (Id. at 8). There is simply no evidence that Hack

knew why Simmons was on administrative leave or received a settlement.
At a minimum, to satisfy the “causal link” prong of his prima facie retaliation case,
Simmons must establish that the Board (through its employees) was actually aware of Simmons’
discrimination suit against Washington County at the time his job offer was rescinded. See
Raney, 120 F.3d at 1197. Simmons falls short of carrying his burden to produce significant
probative evidence regarding Hack’s, Hayes’, Pettway’s, or any other relevant employee’s
knowledge of this statutorily protected conduct. See id. “Without knowledge, there can be no

6 (Doc. 36-3 at 2) (Hack’s deposition where he acknowledges himself as the “chief HR official” at the School
System); (Doc. 43-16) (Hayes’ March 28 email to Hack in which she wrote, “After speaking with you concerning
the matter, the offer was withdrawn.”).
retaliatory intent, and thus there can be no causal connection.” Adams, 2013 WL 5441857, at *13
(citing Lindemann et al., Employment Discrimination Law 15-50-15-51).
Per Simmons’ deposition, “I told [Hayes] – well, she just contact [sic] my attorney and
my attorney would explain to her everything. She told me she didn’t want to talk to my attorney.
She wasn’t getting involved in the mess of Washington County. And she had already talked to

Bryan Hack and somebody else she named out.” (Doc. 43-3 at 4). Simmons speculated in his
declaration that “Washington County mess” referred to Simmons’ prior lawsuit against
Washington County. (Doc. 43-1 at 4). However, Eleventh Circuit precedent prevents this Court
from allowing Simmons to prove the Board’s awareness of Simmons’ Washington County suit
based on “mere curious timing coupled with speculative theories.” Raney, 120 F.3d at 1197; see
also Silvera, 244 F.3d at 1262 (“Discrimination is about actual knowledge, and real intent, not
constructive knowledge and assumed intent.”). Simmons cannot avoid summary judgment
“based on hunches unsupported with significant probative evidence.” Raney, 120 F.3d at 1198.
In reviewing whether the non-moving party has met its burden on summary judgment,

this Court must “stop short of weighing the evidence and making credibility determinations of
the truth of the matter.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir. 1992).
That said, a dispute of fact is only genuine for the purpose of prohibiting summary judgment if
the record, taken as a whole, could lead a rational trier of fact to find for the non-moving party.
Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 807 (11th Cir. 2010). In any event, the
Court concludes that Simmons has not provided sufficient evidence that his protected suit against
Washington County was the “but-for” cause of the Board’s recission of his job offer at
Scarbrough Middle School. See Nassar, 570 U.S. 338 (holding that that Title VII retaliation
claims must be proved according to traditional principles of but-for causation); Comcast Corp.,
140 S. Ct. at 1019 (“To prevail, [Section 1981 plaintiffs] must initially plead and ultimately
prove that, but for race, it would not have suffered the loss of a legally protected right.”).
Moreover, even if Simmons could make out a prima facie case, he does not establish that
the Board’s stated reason for withdrawing the offer – that officials were concerned that Simmons
was “double dipping” – was a pretext for retaliation. Once the employee makes out his prima

facie case of retaliation, the burden shifts to the employer to rebut the presumption of retaliation
by producing legitimate reasons for the adverse employment action. Johnson, 234 F.3d at 507
n.6. The defendant’s proffered explanation must be legally sufficient to justify a judgment for the
defendant. Burdine, 450 U.S. at 255. Here, the Board proffers two reasons. “The decision not to
recommend Simmons be hired at that time was initially made on the basis of his being employed
by another school system, an additional reason was that his application contained false
statements.7” (Doc. 37 at 9).
The School System officials’ concern that Simmons was trying to “double dip” is legally
sufficient to justify a judgment for the Board. The Teachers’ Retirement System of Alabama’s

(“TRS”) Agency Manual lists “persons in receipt of a retirement benefit from the TRS” as
ineligible for participation in the TRS. Tchrs.’ Ret. Sys. of Ala., Agency Manual at 2 (2022). It
also states that participation in the TRS is “mandatory if a person is employed in a position
eligible for coverage in a non-temporary capacity on at least a one-half time basis earning at least
the federal minimum wage.” Id. at 1.
Simmons cherry-picks Hack’s January 26 email in an attempt to establish that the Board’s
reason was a pretext for retaliation. (See Doc. 44 at 12 (citing Doc. 36-7 at 2) (“Just because he

7 The fact that Hayes’ email requesting that Simmons be placed in the “Do Not Hire, Do Not Substitute” module for
“good and just causes,” (Doc. 43-15 at 1), was sent on the same day as Hayes’ affidavit suggests that his placement
in the module followed officials’ recognition that Simmons had submitted a job application containing false
statements, not as retaliation for Simmons filing a charge with the EEOC.
is on admin. leave doesn’t mean he can’t be hired, but we need more info. of course.”)). But
Simmons overlooks Hack’s statement two sentences earlier, “He is trying to double dip.” (Doc.
36-7 at 2). As discussed, the record unambiguously reflects that concerns over Simmons’
administrative leave with full pay and benefits status with Washington County caused the Board
to rescind his offer. (Doc. 36-5 at 3-4) (“At that point [Hayes] informed Mr. Simmons that then

[the School System] could not move forward with the request to hire due to the fact that he was
employed in another system.”); (Doc. 43-12) (email from Hayes to Claudia Baker dated January
27, 2022, in which Hayes wrote, “During the meeting, Simmons was informed that due to his
employment in Washington County, Mobile County would not move forward with the request to
hire.”); (Doc. 36-3 at 3) (“The RSA, which is the Retirement System of Alabama, has a specific
rule that you can’t get paid by two RSA entities at the same time.”); (Doc. 36-7 at 2) (“He is
trying to double dip.”). No finder of fact could reasonably conclude otherwise. See Reeves, 594
F.3d at 807.
Accordingly, once the Board carried its burden of production by proffering a legitimate,

nonretaliatory reason, Simmons did not cast enough doubt on the Board’s reason such that a
reasonable factfinder would find it unworthy of credence. See Berry, 84 F.4th at 1307. Simmons’
attempts to point to “weakness, implausibilities, inconsistencies, incoherencies, or
contradictions” in the Board’s explanation fall flat. Gogel, 967 F.3d at 1136. “A reason is not
pretext for retaliation unless it is shown both that the reason was false, and that retaliation was
the real reason.” Id. Simmons’ sophistry cannot overcome the record’s indication that the Board
did not rescind his offer for retaliatory reasons.
Finally, Simmons is no more successful under what has been called the “convincing-
mosaic framework.” Simmons argues that “the facts of this matter present a convincing mosaic
of evidence that the defendant retaliated against Simmons because of his prior protected
activity.” (Doc. 44 at 16.) An employee may prove retaliation with any circumstantial evidence
that creates a reasonable inference of retaliatory intent. Berry, 84 F.4th at 1310. “But a
‘convincing mosaic’ is a metaphor, not a legal test and not a framework . . . The legal standard –
and the question for the court at summary judgment – is only whether the evidence permits a

reasonable factfinder to find that the employer retaliated against the employee.” Id. at 1301.
Simmons contends that inconsistencies between Hayes’, (Doc. 43-17), and Pettway’s, (Doc. 36-
2), affidavits and Pettway’s March 28, 2022, email summary, (Doc. 43-2), “buttress the mosaic
of evidence establishing a question of fact whether Defendant unlawfully retaliated against
Simmons.” (Doc. 44 at 20). They do not. The affidavits do go so far as to deny that Simmons
ever advised that he was engaged in litigation with Washington County, while Pettway’s email
explicitly acknowledges Simmons’ settlement with Washington County. Still, as explained
above, knowledge of Simmons’ settlement with Washington County is not the same thing as
knowledge of Simmons’ settlement with Washington County incident to a suit for race

discrimination. At bottom, Simmons fails to present sufficient evidence that the Board knew of
his prior lawsuit for race discrimination and the record reveals that the Board rescinded
Simmons’ employment offer due to concerns over his administrative leave with full pay and
benefits status with Washington County. Because the record does not raise a reasonable inference
that the Board retaliated against Simmons, his charges of retaliation under Section 1981 and Title
VII cannot succeed.
V. CONCLUSION
For the reasons set forth herein, the Board’s Motion for Summary Judgment, (Doc. 37), is
GRANTED. Judgment shall be entered by separate document as provided in Federal Rule of
Civil Procedure 58(a).
DONE and ORDERED this the 18th day of December 2023.

/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9993362. Public record. Not legal advice.