IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

EASTERN DIVISION 

BARBARA M. JEFFERS and ) 

JOAN M. CRAIG, ) 

) 

 Plaintiffs, ) 

 ) 

v. ) CIVIL ACTION NO. 3:06 CV 685 CSC 

) 

RUSSELL COUNTY BOARD OF ) 

EDUCATION and CHARLES NACRELLI, ) 

 ) 

 Defendants. ) 

 NARRATIVE SUMMARY OF UNDISPUTED FACTS AND 

BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

 Comes now the Defendant, Russell County Board of Education, and submits the 

following Narrative Summary of Undisputed Facts and Brief in Support of its Motion for 

Summary Judgment respectfully requesting that the Court enter judgment in this Defendant’s 

favor as to all claims stated by Plaintiffs. 

INTRODUCTION

The Plaintiffs, Barbara M. Jeffers (hereinafter referred to as Jeffers) and Joan Craig 

(hereinafter referred to as Craig) seek to hold the Russell County Board of Education (hereinafter 

referred to as Board) liable for sexual harassment. Jeffers and Craig have alleged that Charles 

Nacrelli (hereinafter referred to as Nacrelli), the former principal of Ladonia Elementary School 

(hereinafter referred to as Ladonia) sexually harassed each of them in their employment. These 

claims against the Board are based on the theory of vicarious liability of an employer for the acts 

of its employee. As discussed below Jeffers and Craig are unable to show that there is a genuine 

issue of a material fact that would preclude summary judgment for the Board. 

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 NARRATIVE SUMMARY OF UNDISPUTED FACTS

The Russell County Board of Education is a county board of education and is a local 

agency of the State. The Board owns and operates public schools in Russell County, Alabama. 

 The Plaintiff Barbara Jeffers is a certified, tenured employee (counselor) of the Board in 

the position of school counselor at Ladonia. 

The Plaintiff Joan Craig is a classified, non-probationary employee (support person) of 

the Board in the position of bus driver assigned to Ladonia. 

The Defendant Charles Nacrelli is a former employee of the Board who previously 

served as Principal of Ladonia from the fall of 1999 until he was placed on leave and relieved of 

his duties on September 23, 2005. Nacrelli was terminated by the Board; appealed his 

termination under the Alabama tenure laws; and subsequently resigned. (Lee Affidavit). 

Jeffers attended a party at the home of Nacrelli in July of 2005. 

Jeffers first reported her allegations against Nacrelli to Dr. Rebecca S. Lee (hereinafter 

referred to as Lee), the former superintendent of the Board, on September 20, 2005. (Lee 

Affidavit). 

Craig first reported her allegations against Nacrelli to Lee on October 25, 2005. (Lee 

Affidavit). 

Lee served as the Superintendent of the Russell County Schools from late April 2004 

until July 17, 2006. Her contract dates were July 1, 2004 to October 20, 2006. (Lee Affidavit). 

The Board had previously adopted Board Policy GAJDBH which was in full force and 

effect during all times relevant herein. (Lee Affidavit; Lee Depo. pp. 14:22-23; 15:1-23 16:1-5.) 

The Board published “Student Academic Plan & State of Responsibilities, A Handbook 

for School Personnel, Parents & Students” for the School Year 2004-2005 which contained as 

Appendix II, Russell County Board of Education, Statement of Sexual Harassment Policy. (Lee 

Affidavit). 

The Board published “Student Academic Plan & State of Responsibilities, A Handbook 

for School Personnel, Parents & Students” for the School Year 2005-2006 which contained as 

Appendix II, Russell County Board of Education, Statement of Sexual Harassment Policy. (Lee 

Affidavit). 

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The “Student Academic Plan & State of Responsibilities, A Handbook for School 

Personnel, Parents & Students” is distributed to all the teachers and to all the support people. 

(Baker Depo. pp. 19:22-23 – 20:1-6). 

John Rudd (hereinafter referred to as Rudd), Transportation Supervisor for the Board, 

hold an in-service training at the beginning of each year for transportation employees and deals 

with harassment of all types, including sexual harassment, and the reporting procedures. He 

issues a new Transportation Handbook to each driver which contains a section that deals with 

harassment. (Rudd Affidavit). 

Lee instructed Lillian Baker (hereinafter referred to as Baker) on September 20, 2005 to 

investigate the allegations brought by Jeffers against Nacrelli. Baker began her investigation the 

next day, September 21, 2005. (Lee Affidavit). 

Lee placed Nacrelli on administrative leave in her letter to him of September 23, 2005, 

and instructed Nacrelli to not have conduct with the staff at Ladonia. (Lee Affidavit). 

Nacrelli left Ladonia on September 23, 2005 and did not return except for the express 

purpose of meeting the counsel for the Board to retrieve his personal items from his office. (Lee 

Affidavit) 

Jeffers filed her claim of sexual harassment against the Board with the Equal 

Employment Opportunity Commission (hereinafter referred to as EEOC) on December 23, 2005. 

This Charge was dismissed on December 29, 2005. Jeffers filed her Amended Charge of 

Discrimination on January 19, 2006. The Charge Number assigned to the Amended Charge of 

Discrimination was 130-2006-01374. 

Craig filed her claim of sexual harassment against the Board with the Equal Employment 

Opportunity Commission (hereinafter referred to as EEOC) on January 19, 2006. The Charge 

Number assigned was 420-2006-00390. 

Plaintiffs filed suit in this Court on August 3, 2006. 

 

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ARGUMENTS

I

VICARIOUS LIABILITY OF EMPLOYER

 In Faragher v. City of Boca Raton, 524 U.S. 778 118 S.Ct. 2278 (1998) and Burlington 

Industries, Inc. v. Ellerth 524 U.S. 742, 118 S.Ct. 2257 (1998) the Supreme Court answered the 

question of when may an employer be held liable under Title VII for the acts of a supervisory 

employee whose sexual harassment of subordinates has created a hostile work environment 

amounting to employment discrimination. 

 Under Faragher and Ellerth the standard under which employer liability for supervisory 

harassment is to be decided is: 

 “An employer is subject to vicarious liability to a victimized employee for an actionable 

hostile environment created by a supervisor with immediate (or successively higher) authority 

over the employee. When no tangible employment action is taken a defending employer may 

raise an affirmative defense to liability or damages subject to proof by a preponderance of 

evidence. . . . The defense comprises two necessary elements: a) that the employer exercised 

reasonable care to prevent and correct promptly a sexual harassing behavior, and b) that the 

plaintiff employee unreasonably failed to take advantage of any preventive or corrective 

opportunities provided by the employer or to avoid harm otherwise. . . . No affirmative defense 

is available, however, when the supervisor’s harassment culminates in a tangible employment 

action, such as discharge, demotion, or undesirable reassignment.” Faragher, 524 U.S. at 807-

08. 

An employer is strictly liable for harassment by a supervisor that culminates in a tangible 

employment action. When there is no tangible employment action, the employee must establish a 

hostile work environment. The employer may defeat liability for a hostile work environment by 

raising the affirmative defenses that the employer exercised reasonable care to prevent and 

correct promptly any sexual harassing behavior and that the plaintiff unreasonably failed to take 

advantage of any preventive or corrective opportunities provided by the employer or to avoid 

harm otherwise. Johnson v. Booker T. Washington Broadcasting Service 234 F. 3d 501(11th

Cir.2000); Walton v. Johnson & Johnson Services, Inc., 347 F. 3d 1272 (11th Cir. 2003). 

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A. 

TANGIBLE EMPLOYMENT ACTION

To establish a prima facia case of vicarious liability against the Board for a 

tangible job action by Nacrelli, Jeffers and Craig must prove by a preponderance of evidence that 

they were subjected to an unwelcome sexual advance from a supervisor and that their negative 

responses to these advances was a motivating factor that resulted in a tangible job detriment 

being taken against them. Meritor Savings Bank, FSB v. Vinson 477 U.S., 68 (1986). 

 The only issue is whether Jeffers and Craig can show that their response to an unlawful 

request was in fact used thereafter as a basis for a decision affecting their employment. Farrell 

v. Planters Lifesavers Co., 206 F.3d 271 (3rd Cir. 2000). 

 In Ellerth the Supreme Court described a tangible employment action as a “significant 

change in employment status, such as hiring, firing, failing to promote, reassignment with 

significantly differently responsibilities, or a decision causing a significant change in benefits.” 

Ellerth, 526 U.S. at 761. 

(1) 

Claim of Jeffers 

 Jeffers alleges that she suffered an “illegal, retaliatory assignment” after she reported the 

sexual advances of Nacrelli. She states that she was “given a class load so unbearable by 

principal Nacrelli that the assignment violated state law” and that she “had to work additional 

hours for which she was not paid to keep pace with the demands from the new assignment.” 

(Doc #1, Count Two). 

 Jeffers deposition testimony does not substantiate her claim of a tangible job action. 

Jeffers testified that there were 3 different work schedules that year. (Jeffers Depo. p. 194:3-4). 

When Nacrelli gave her the first schedule she went to him and showed him that it was not a 

satisfactory schedule. (Jeffers Depo.pp.192:18; 193: l and 12-20). Nacrelli then made out another 

schedule which she did not consider satisfactory. (Jeffers Depo. pp.192:20-22; 193:21-23). 

Jeffers never worked under the either of the schedules drafted by Nacrelli. (Emphasis 

added) (Jeffers Depo. pp.194:8-10). Ultimately Nacrelli told Jeffers to make up her own 

schedule and that is the one she worked under. (Jeffers Depo. pp. 192:22-23 – 93:1-3; 194:11-

16). 

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 Superintendent Lee testified that the changes in the schedules were done in conjunction 

with a change affecting counselors in all the elementary schools. (Lee Depo. pp. 41:7-23 – 42:1-

3). These discussions and changes in the schedules for counselors were held in the spring of the 

school year 2004-2005. (Lee Affidavit).Therefore the schedules changes were the result of 

directive from Lee. 

 In addition to the fact that Jeffers never worked under the assignment which she 

described as an illegal retaliation, and the fact that the schedule changes for elementary 

counselors were initiated by Lee and discussed with the elementary principals in the spring of 

2005, Jeffers has failed to present any other evidence of an adverse tangible job action. There has 

been no change in her tenure status. (Jeffers Depo. p. 195:3-14).She continues to receive the 

same benefits as before. (Jeffers Depo. pp. 195:15-23 – 196:1). There has been no loss in salary. 

(Jeffers Depo. p. 197:6-12). And she has not had any loss of income. (Jeffers Depo. p. 319:17-

18). 

 Jeffers cannot present any evidence that there has been a “significant change in 

employment status, such as hiring, firing, failing to promote, reassignment with significantly 

different responsibilities, or a decision causing a significant change in benefits.” Ellerth, 526

U.S. at 761. Therefore Jeffers claim of a tangible job action fails and Defendant is entitled to 

summary judgment as to Jeffers Count Two. 

(2) 

Claim of Craig 

Craig alleges that she “often drove routes on her off hours, transporting students on field, 

band, sports and extra-curricular trips.” She alleges that because Nacrelli’s sexual harassment 

became so unbearable she “ceased accepting the additional work.” She further alleges that 

Nacrelli’s conduct resulted in constructive discharge from the work opportunity. (Doc #1, Count 

Four). 

For there to be an actionable adverse tangible employment action claim to hold an 

employer vicariously liable there must be proof that that the person charged with the harassing 

conduct is a supervisor with immediate (or successively higher) authority over the employee. 

Faragher 524 U.S. at 807; Ellerth, 524 U.S. at 765. A claim of tangible employment action 

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cannot be maintained as an action against a co-worker. Johnson v. Booker T. Washington 

Broadcasting Service 234 F. 3d 501, 508(11th Cir.2000). 

 Nacrelli was not Craig’s Supervisor. He had no authority to have any impact on her 

employment or the terms of her employment. He did not have any input into the evaluations of 

Craig. (Nacrelli Depo. p. 92:3-16). He had nothing to do with the school busses including how 

they lined up. (Nacrelli Depo. pp. 89:17-23 – 90:1-5). Her immediate supervisor was and is John 

Rudd who is Transportation Supervisor. Rudd is the supervisor who has the authority to affect 

Craig’s employment including discipline and her continued employment. He alone would make 

any recommendation to the Assistant Superintendent for Personnel to terminate Craig’s 

employment. (Rudd Affidavit) 

Rudd hired Craig and has been Craig’s supervisor the entire time that she has been a bus 

driver. (Craig Depo. p. 62:11-17; Rudd Affidavit). Nacrelli’s only involvement related to student 

discipline, and he shared that responsibility with the other administrators at Ladonia. (Craig 

Depo. pp. 62:18-20; 63:21-23; 64:1-4 -17-22). 

 Rudd set up the bus routes for Craig and the other bus drivers each year. Craig and the 

other drivers had some input into those routes. Each year when the drivers picked up their busses 

they would go over the routes that had been set up for each bus. Craig would go to the bus shop 

to have input into the routes. On the years that Craig did not have input into the routes, Rudd 

would give her a piece of paper with the routes. (Craig Depo. pp. 59:21-23; 60:1-23; 61:1-20). 

Craig cannot identify any meetings with she and Rudd discussed bus routes when Nacrelli was 

present. (Craig Depo. pp. 65-17-23; 66:1-9). 

 Craig alleges that she ceased accepting extra work by no longer taking extra trips 

transporting students. Craig is the one who set up those extra trips by obtaining volunteers for 

them. From the 1992-1993 school year Craig was the contact person that the bus shop called to 

ask which bus driver would take a field trip. (Craig Depo. pp. 71:4-23; 72:1-20). Rudd allowed 

her to seek out the volunteers. (Rudd Affidavit). She voluntarily stopped taking extra field trip 

assignments after the trip to the Rudd Tree Farm in either 2002 or 2003. (Craig Depo. pp. 69:4-

13). After that trip Craig went to the bus shop and told Tina that she wasn’t taking any more field 

trips. (Craig Depo. p. 70:5-10). Craig voluntarily stopped taking the field trips for extra income. 

Her supervisor Rudd did not play any part in Craig’s decision to stop taking the field trips. 

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 Craig did not suffer an adverse tangible action. She voluntarily stopped taking the extracurricular bus trips. She did not consult or advise anyone about her decision. This action was 

taken without any involvement of her supervisor Rudd. Nacrelli was not her supervisor. The 

Board is entitled to summary judgment on Craig’s claim of adverse employment action. 

 (a) 

Craig’s Constructive Discharge Claim

Because there was no adverse job action is no constructive discharge 

 To prove constructive discharge, Craig must prove that her working conditions were so 

intolerable that a reasonable person in her position would have been compelled to resign. Steele 

v. Offshore Shipbuilding, Inc. 867 F. 2d 1311 (11th Cir. 1989). The standard for judging a 

constructive discharge claim is based on an objective standard. Craig’s subjective feelings are 

not the controlling issue. Hipp v. Liberty National Life Insurance Co., 252 F. 3d 1208 (11th Cir. 

2001). “To successfully claim constructive discharge, a plaintiff must demonstrate that working 

conditions were so intolerable that a reasonable person in [his] position would have been 

compelled to resign.” Id. at 1231. “The standard for proving constructive discharge is higher 

than the standard for proving a hostile work environment.” Landgraf v. USI Film Prods., 968 F. 

2d 427 430 (5th Cir. 1992). 

Craig has testified that she voluntarily removed herself from the extra curricular trips in 

2002-2003. (Craig Depo. pp. 69:4-13; 70:5-10). A constructive discharge will not be found 

unless Craig has given the Board sufficient time to remedy the situation. Kilgore v. Thompson & 

Brock Management, Inc., 93 F. 3d 752 (11th Cir. 1996). Notice to Lee was not given until 

October 25, 2005, and to Rudd on February 9, 2006. (Lee and Rudd Affidavits).

B. 

HOSTILE WORK ENVIRONMENT SEXUAL HARASSMENT

 To establish a claim of sexual harassment where no tangible employment action has been 

taken the Plaintiff must establish a hostile work environment by proof of the following elements: 

 “(1) that. . . she belongs to a protected group; (2) that the employee has been subject to 

unwelcome sexual harassment, such as sexual advances, request for sexual favor, and other 

conduct of a sexual nature; (3) that the harassment must have been based on the sex of the 

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employee; (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) a 

basis for holding the employer liable.” Mendoza v. Borden, Inc., 195 F. 3d 1238, 1245 (11th Cir. 

1999); Gupta v. Florida Board of Regents, 212 F. 3d 571, 582. Meritor Savings Bank, FSB v. 

Vinson 477 U.S. 57 (1986); Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993). 

 Obviously, there is no dispute that the Jeffers and Craig belong to a protected group 

(women). Defendant does not dispute that the allegations made by Craig against Nacrelli are 

gender based. However, the Defendant disputes that the remaining elements necessary to prove a 

hostile work environment have been established.

Jeffers and Craig are unable to prove that their alleged harassment created a hostile work 

environment that was so severe or pervasive as to alter the terms of their employment. “For 

sexual harassment to be actionable, it must be “sufficiently severe or perverse to alter the 

conditions of the victim’s employment and create an abusive work environment”. Mendoza, 195 

F. 3d at 1245; Henson v. City of Dundee, 682 F. 2d 897 (11th Cir. 1982) 

 Whether conduct reaches the level of being so severe and pervasive as to alter the terms 

of the employment depends upon factors including, among others, 1) the frequency of the 

discriminatory conduct; whether it is physically threatening or humiliating, or mere offensive 

utterance. 2) the severity of the discriminatory conduct 3) whether the discriminatory conduct 

is physically threatening or humiliating or a mere offensive utterance and 4) whether the 

discriminatory conduct interferes with an employees work performance. Harris, 510 U.S. at 23.

 “For sexual harassment to rise to the level where it alters the terms and conditions of 

employment, the work environment must be “both objectively and subjectively offensive, one 

that a reasonable person would find hostile or abuse, and one that the victim in fact did perceive 

to be so.” Faragher, 524 U.S. at 787. Based on their having filed their EEOC complaints and this 

lawsuit, Jeffers and Craig found the alleged harassment to be subjectively offensive. “In 

addressing the objective hostility of the conduct, we must look at four factors: “(1) the frequency 

of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening 

or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably 

interferes with the employee’s job performance.” Mendoza, 195 F. 3d at 1246. 

 The Eleventh Circuit Court of Appeals in Mendoza found that the allegations were “well 

short” of the level required to be severs and perverse sufficient to alter the terms or conditions of 

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the Plaintiff’s employment. In reaching this conclusion the Court listed approximately 12 cases 

from Circuits throughout the country that have rejected sexual harassment claims. Mendoza, 195 

F.3d at 1246-1247. “Were we to conclude that the conduct established by Mendoza was 

sufficiently severe or pervasive to alter her terms or conditions of employment, we would 

establish a baseline of actionable conduct that is far below that established by other circuits.” Id. 

at 1251. Counsel for the Board will not list and discuss those cases in this brief, but provides this 

information for the benefit of this Court in reaching its decision. 

In Gupta the Eleventh Circuit found that the evidence presented by the Plaintiff was not 

sufficient for a reasonable person to perceive the work environment to be hostile and abusive. 

“Furthermore, a finding that Gupta’s complaints constitute sexual harassment would lower the 

bar of Title VII to punish mere bothersome and uncomfortable conduct, and would trivialize true 

instances of sexual harassment.” Gupta, 212 F. 3d at 586, (internal quotations omitted); 

Mendoza, 195 F.3d at 1252. 

In Baldwin v. Blue Cross/Blue Shield of Alabama, 480 F. 3d 1287 (11th Cir. (2007), the 

District Court had held that the alleged incidents of harassment were not sufficiently severe or 

pervasive to constitute sexual harassment. The Eleventh Circuit allowed holding to stand and 

decided the case on the affirmative defenses outlined in Faragher and Ellerth. 

 This Court must decide, looking at the totality of the circumstances, from an objective 

perspective whether the harassing conduct alleged by Jeffers and Craig was sufficiently severe or 

pervasive to alter the terms or conditions of their employment and create a hostile or abusive 

working environment. The Board respectfully submits that all of the evidence submitted by 

Jeffers and Craig, when considered in a light most favorable to them, does not prove that the 

alleged conduct was so severe and pervasive. Because the Plaintiffs have failed to present a 

prima facie case, the Board is entitled to summary judgment on their claims of a hostile work 

environment. 

(1) 

Claims of Jeffers 

Jeffers main complaint of sexual harassment by Nacrelli is based upon Nacrelli’s actions 

at a private party which occurred at his home in July, 2005.”This was not a school function.” 

(Nacrelli Depo. p.43:8) In her Complaint Jeffers alleges that Nacrelli made lewd, unwanted 

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sexual statements and subjected her to improper physical conduct and exposed his male genitalia 

to her. (Doc. # 1, Count One). 

 Jeffers attended this party voluntarily. She drove herself to the party and she drove 

herself home. Everyone had left the party except for Jeffers and Nacrelli’s wife Jeri. Jeffers 

voluntarily stayed after everyone left. Jeffers was free to leave the party at any time before or 

after all the other guests had left. (Jeffers Depo. p.76:2-17). Nacrelli was at his own home. 

Nacrelli was drunk at the time of this occurrence. (Nacrelli Depo. p.55:22-23.) Jeffers saw the 

alleged nakedness only because she had voluntarily chosen to remain at the Nacrelli home. The 

allegations that she makes about Nacrelli appearing naked are not in any way related to her 

employment. Nacrelli’s conduct was merely offensive and does not rise to the level of sexual 

harassment. A reasonable person would not have found such conduct to be hostile and abusinve. 

Mendoza, 195 F. 3d at 1246; Gupta, 212 F. 3d at 584.

 The plaintiff’s conduct at work is an issue that the trier of fact can examine to determine 

whether or not the alleged sexual advances were unwelcome. Courts have generally held that the 

plaintiff’s conduct outside the workplace is not relative to a determination of welcomeness. A 

plaintiff’s private life, regardless of how reprehensible the trier of fact might find it to be, did not 

provide lawful acquiesce to unwanted sexual advances at her work place by her employer. Burns 

v. McGregor Electronic Industries, Inc. 989 F.2d 959 (8th Cir. 1983). 

Because plaintiff’s conduct outside the workplace is not relevant, likewise, any conduct 

of Nacrelli which occurred at his own home at a private party hosted by him and his wife and 

outside the workplace is irrelevant. 

 Jeffers also alleges that Nacrelli picked her up and bit her on the breast. Meriwether v. 

Caraustar Packing Co., 326 F. 3d 1990 (8th Cir. 2003) (holding that the lone incident where a 

coworker grabbed the plaintiff’s buttocks did not rise to the level of severe or pervasive conduct 

to alter the conditions of the plaintiff’s employment and create an abusive work environment). 

Shepard v. Comptroller of Public Accounts of Texas, 168 F3d 871 (5th Cir. 1999) (incidents over 

a two year period that included comments about the plaintiff’s nipples and thighs and repeated 

touching of plaintiff’s arm in attempts to look down plaintiff’s dress were insufficient to support 

a hostile work environment claim).

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(2) 

Claims of Craig 

 Craig alleges that her supervisor, Nacrelli, subjected her to lewd statements of a sexual 

nature, improper propositions and requests for sexual favors, and unwanted physical touching. 

She further describes specific incidences in Paragraph 62 of her Complaint and in her Statement 

of Facts. (Doc. # 1, Count Three). 

Nacrelli was not Craig’s supervisor. Therefore any claims of Craig regarding a hostile 

work environment are governed by the law relating to sexual harassment by co-workers. 

When the alleged harassment was done by a co-worker instead of a supervisor, the employer will 

be held liable only if the employer “knew or should have known of the harassing conduct but 

failed to take prompt remedial action.” Baldwin v. Blue Cross/Blue Shield of Alabama, 480 F. 3d 

1287, 1302 (11th Cir. 2007); Kilgore v. Thompson & Brock Management, Inc. 93 F. 3d 752, 753 

(11th Cir. 1996). Thus, Craig must show that the Board either had actual knowledge or that 

Nacrelli’s conduct was sufficiently sever and pervasive that it constituted constructive 

knowledge. Miller, 277 F. 3d at 1278. 

 The factors to be considered in determining whether the employer had constructive notice 

are “(1) the remoteness of the location of the harassment as compared to the location of 

management; (2) whether the harassment occurs intermittently over a long period of time; (3) 

whether the victims were employed on a part time or full time bases; and (4) whether there were 

only a few, discrete instances of harassment.” Allen v. Tyson Foods, Inc., 121 F. 3d 642, 647 

(11th Cir. 1997); Miller, 277 F. 3d 1278-1279.When the severity of the allegations in Miller are 

compared to the allegations of Craig, there is not sufficient evidence to charge the Board with 

constructive notice. Rudd’s office is at the Seale, Alabama facilities off of U. S. Highway 431 

and located in the center of Russell County. Ladonia is on U.S. Highway 80 in the north western 

portion of Russell County. Craig drives her routes in the morning and afternoon and is at 

Ladonia only while delivering students for school in the morning and picking up those students 

in the afternoon to deliver them home. Finally, her allegations consist of only a few, discrete 

instances. 

 Craig did not tell Lee of her allegations against Nacrelli until October 25, 2005. (Lee 

Affidavit). Craig did not tell her supervisor Rudd of her allegations against Nacrelli until 

February 9, 2006. (Rudd Affidavit). 

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 Craig alleges that she told Baker “the second to the last week in August” about her belief 

that she had been sexually harassed by Nacrelli. (Craig Depo. pp. 143:16; 144:8-23). “It was in - 

- closer towards September.” (Craig Depo. p.146:1-3). Baker denies that this meeting ever 

occurred. (Baker Depo. pp. 88:14-23 – 89:1-12). However, the mere existence of a factual 

dispute will not automatically necessitate denial of a motion for summary judgment. Only factual 

disputes that are material will preclude entry of summary judgment. Lofton v. Secretary of Dept. 

of Children and Family Services, 358 F. 3d 804 (11th Cir. 2004); Stephens v. City of Butler, 509 

F. Supp 2d 1098(S.D.Ala. 2007). The discrepancy over whether Craig told Baker of her 

allegations against Nacrelli is not a material fact. The removal of Nacrelli was done in a timely 

manner. To defeat Board’s request for summary judgment Craig “must do more than show that 

there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith 

Radio Corp. 475 U.S. 574, 586 (1986).

From the time that Craig testified that she met with Baker in the latter part of August 

2005, or “closer to September,” Craig did not encounter any further episodes of alleged sexual 

harassment by Nacrelli. The last incident alleged by Craig took place on August 9 or 10, 2005. 

(Craig Depo. pp. 140:9-10; 141:17; 142:4). Nacrelli was removed from the school on September 

23, 2005. Therefore, the timing of the meeting with Baker does not raise a material fact. From 

the date of the alleged meeting with Baker and the time that Nacrelli was removed from Ladonia. 

Craig did not experience any sexually harassment by Nacrelli. 

Craig has testified that she didn’t report the allegations against Nacrelli earlier because 

she would lose her job. (Craig Depo. p. 90:18-19). Craig had the duty to report her allegations 

promptly. “While we have recognized that filing a sexual harassment complaint may be 

“uncomfortable, scary or both. . . . The Faragher and Ellerth decisions present employees who 

are victims of harassment with a hard choice: assist in the prevention of harassment by promptly 

reporting it to the employer, or lose the opportunity to successfully prosecute a Title VII claim 

based on the harassment. . . .” Baldwin, 480 F.3d at 1307. “One of the primary obligations that 

the employee has. . . is to take full advantage of the employer’s preventative measures.” Nurse 

“Be” v. Columbia Palms West Hosp. Ltd, 490 F. 3d 1302, 1310 (11th Cir. 2007). 

Craig has not demonstrated a basis for holding the Board liable for the allegations against 

Nacrelli. Mendoza, 195 F.3d at 1245.Therfore she has failed to prove one of the elements of her 

sexual harassment claim. 

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Assume arguendo that Nacrelli was Craig’s supervisor. If so, then Craig’s allegations are 

to be considered in light of the affirmative defenses set forth in Faragher and Ellerth. The Board 

had a sexual harassment policy that Craig was aware of. Nacrelli was removed from Ladonia on 

September 23, 2005. Craig did not meet with Lee and present her allegations regarding Nacrelli’s 

behavior until October 25, 2005. (Craig Depo. p. 153:10-11). Craig testified that she first began 

trying to schedule an appointment with Lee the first part of October. (Craig Depo. pp. 147:23 - 

148:1-23). By this time Nacrelli had already been removed from his position at Ladonia and was 

no longer on the campus. The Board had already acted promptly to correct and prevent any 

sexually harassing conduct by Nacrelli. 

The allegations made by both Jeffers and Craig do not rise to the level of severe and 

pervasive. There is simply no comparison of the allegations of Jeffers and Craig with the 

allegations in Miller v. Kenworth of Dothan, 277 F. 3d 1269 (11th Cir. 2002) in terms of their 

severity; frequency; any interference with their job performance or physically threatening or 

humiliating. The comments and actions attributed to Nacrelli rise only to the level of offensive 

utterances or off handed comments in the course of casual conversation. Id. 

C.

AFFIRMATIVE DEFENSES

 The Board is entitled to summary judgment on the basis of the affirmative defenses 

recognized by the Supreme Court in Ellerth and Faragher. To be entitled to these defenses the 

Board must prove that a) it exercised reasonable care to prevent and correct promptly a sexual 

harassing behavior, and b) that the plaintiffs’ employee unreasonably failed to take advantage of 

any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. 

Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807-808. This the Board has done. 

(a) 

 The Board has a sexual harassment policy that has been in place at all relevant times 

herein. Board Policy GAJDBH clearly defines sexual harassment; sets forth the procedure to be 

used in reporting complaints; and sets for the investigative procedure to be used. (Lee Depo. 

Exhibit 1). This policy complies with the requirements of Walton v. Johnson & Johnson 

Services, Inc., 347 F. 3d 1272 (11th Cir. 2003) and Nurse “Be” v. Columbia Palms West Hosp. 

14 

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Ltd, 490 F. 3d 1302 (11th Cir. 2007). While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, 

the need for a stated policy suitable to the employment circumstances may appropriately be 

addressed in any case with litigating the first element of the defense. Faragher, 524 U.S. at 807-

08. 

 Next the Board exercised reasonable care to prevent and correct promptly the alleged 

sexually harassing behavior of Nacrelli. Jeffers reported her allegations to Lee on September 20, 

2005. Nacrelli was placed on administrative leave and removed from the campus on September 

23, 2005. Craig did not report her allegations to Lee until October 25, 2005, a month after 

Nacrelli had been removed from the campus. 

(b) 

 Both Jeffers and Craig failed to take advantage of the preventive or correctives 

opportunities provided by the Board. As discussed herein, both Jeffers and Craig waited 

unreasonably long times before they reported their allegations again Nacrelli. “And while proof 

that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is 

not limited to showing an unreasonable failure to use any complaint procedure provided by the 

employer, a demonstration of such failure will normally suffice to satisfy the employer’s burden 

under the second element of the defense.” Faragher, 524 U.S. at 807-08. 

Jeffers may well contend that her calls to Brenda Coley, the former assistant principal at 

Ladonia, on the night of the party and to Dillie Elliot, a member of the Russell County Board of 

Education, several days later were notice to the employer and hence defeat the affirmative 

defense available to the Board. Both Coley and Elliot have testified that Jeffers was a personal 

friend of each of them and that the calls to them relating the facts which occurred at the party 

were made to a friend and not to either a principal or Board member. Both have testified that 

Jeffers specifically asked each of them not to tell. (Coley Depo. pp. 58:19-23 – 59:1-12). (Elliot 

Depo. pp. 29:23 – 30:1-7; 31:10-15). Jeffers admits that she asked Elliott not to tell. (Jeffers 

Depo. p. 107:3-8). Jeffers denies asking Coley not to tell. (Jeffers Depo. p. 92:1-3). However, 

Coley testified that Jeffers asked her not to tell. (Coley Depo. pp. 47:20-23 – 48:1-7). 

 This is the almost identical situation found in Nurse “Be” v. Columbia Palms West Hosp. 

Ltd. There the plaintiff did not want her allegations reported to the administration and would not 

15 

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identify herself until her supervisor promised that the matter would not be reported. “We have 

held, albeit in an unpublished opinion, that “if [plaintiff] did not want [the harassing behavior] 

reported or acted upon, then [the employer] would not have been placed on proper notice of the 

harassment. . . One of the primary obligations that the employee has under [the rules promulgated 

by Faragher and Ellerth ] is to take full advantage of the employer’s preventative measures.” 

Baldwin, 480 F.3d at 1307. . . . .” Id. At 1304. 

 The Board had a sexual harassment policy and the Board acted promptly once the 

allegations were reported. Jeffers and Craig unreasonably failed to utilize the complaint 

procedure provided by the Board. There is no issue of material fact and the Board is entitled to 

summary judgment on the basis of these affirmative defenses. Walton v. Johnson & Johnson 

Services, Inc., 347 F. 3d 1272 (11th Cir. 2003). 

 II

VICARIOUS LIABILITY FOR ASSAULT AND BATTERY

 Plaintiffs claim that the Board is vicariously liable for the allegations of assault and 

battery by Nacrelli in Count Five and Six of their Complaint. 

The Board has sovereign immunity under Art. I, §14 of the Alabama Constitution (1901) 

which states “[t]he State of Alabama shall never be made a defendant in any court of law or 

equity.” County boards of education are local agencies of the state and are entitled to sovereign 

immunity. Sims v. Etowah County Board of Education, 337 So. 2d 1310 (Ala. 1976); Hutt v. 

Etowah County Board of Education, 454 So. 2d 973(Ala. 1984;) Louviere v. Mobile County 

Board of Education, 670 So. 2d 873 (Ala.1995); Stanley v. Bullock County BOE, 2007 U.S. Dist. 

LEXIS 84778 (M.D. Ala.2007). 

Because of sovereign immunity the Board is not vicariously liable for the alleged assault 

and battery by Nacrelli. 

16 

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III

VICARIOUS LIABILITY FOR PUNITIVE DAMAGES

 The Board is not liable for punitive damages. “. . . [a]n employer may not be vicariously 

liable for the discriminatory employment decisions of managerial agents where these decisions 

are contrary to the employer’s good faith efforts to comply with Title VII.” Kolstad v. American 

Dental Association, 527 U.S. 526, 545 (1999). (Internal quotation marks omitted). Giving this 

protection to employers accomplishes Title VII’s objective of motivating employers to detect and 

deter violations of Title VII. Id. at 545. The Board has made a good faith effort to comply with 

Title VII. It has a sexual harassment policy that is found not only in the Board Policy Manual, 

but also in the handbook distributed to all employees, teachers and support personnel, and in the 

Transportation Manual. This policy is discussed at in-service meetings by supervisors and 

principals. Upon being informed of the allegations by Jeffers and Craig, the Superintendent and 

her staff promptly investigated the Plaintiffs’ allegations and took swift action to remove 

Nacrelli from Ladonia. The Board is entitled to summary judgment as to the Plaintiffs’ claims for 

punitive damages.

IV

STATUTE OF LIMITATIONS

 Under Ledbetter v. The Goodyear Tire and Rubber Co. Inc., 127 S. Ct. 2162 (2007) 

the allegations of Jeffers and Craig regarding Nacrelli’s conduct which did not arise within 180 

days of the filing of their EEOC complaints are not timely. The time for filing a charge of 

discrimination with the EEOC begins when the discrete act of discrimination occurs. Id. at 2065. 

Therefore, the Board is entitled to summary judgment on the allegations of Jeffers that occurred 

more than 180 days prior to December 23, 2005 and on the allegations of Jeffers that occurred 

more than 180 prior to January 19, 2006. 

CONCLUSION

Litigation alleging sexual harassment is fact intensive. The Eleventh Circuit Court of 

Appeals has agreed with the Fifth Circuit Court of Appeals that summary judgment is 

appropriate to “police the baseline for hostile environment claims.” Mendoza, 195 F. 3d at 1244.

17 

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18 

The factual allegation presented by Jeffers and Craig do not rise to the level of a hostile work 

environment. The Board is entitled to the affirmative defenses as set forth in Ellerth and 

Faragher. Summary judgment in favor of the Board against all of the claims of Jeffers and Craig 

is appropriate. 

This the 14th day of December, 2007. 

 SMITH & SMITH 

 A PROFESSIONAL CORPORATION 

 BY: /s/ Sydney S. Smith 

 Sydney S. Smith 

 Attorney for Defendant 

 Russell County Board of Education 

 1503 Broad Street 

 Phenix City, Alabama 36867 

 (334) 298-2679 

 ASB-4248-582S 

CERTIFICATE OF SERVICE

 I hereby certify that I have filed today, December 14, 2007, by CM/ECF, the above and 

foregoing with copies being served upon: 

 W. Don Eddins, Esq. 

doneddins@charter.net

and 

Matthew C. Williams, Esq. 

matt@esw-law.com 

 /s/ Sydney S. Smith 

CV/.C-06-045 Brief in Support of Mtn for Summary Judgment 

Case 3:06-cv-00685-WKW-CSC Document 40 Filed 12/14/2007 Page 18 of 18