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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

BARBARA JEFFERS and )

JOAN CRAIG, )

Plaintiffs, )

v. ) CASE NO. 3:06-cv-685-WKW

RUSSELL COUNTY BOARD OF )

EDUCATION, et al., )

Defendants. )

PLAINTIFFS’ RESPONSE TO SUMMARY JUDGMENT MOTIONS

FILED BY DEFENDANT RUSSELL COUNTY BOARD OF EDUCATION

AND DEFENDANT CHARLES NACRELLI

COME NOW THE PLAINTIFFS and submit this response to Motions for Summary

Judgment by defendants Russell County Board of Education and Charles Nacrelli.

Plaintiffs respectfully ask the Court to deny the motions and issue an Order setting the

case for trial on all issues discussed herein.

INTRODUCTION/FACTS

After each plaintiff timely filed a Charge of Discrimination with the U.S. Equal

Employment Opportunity Commission, plaintiffs Barbara Jeffers and Joan Craig filed a

complaint in United States District Court for the Middle District of Alabama, Eastern

Division, on August 3, 2006. The complaint against the Russell County Board of

Education alleged violation of Title VII of the 1964 Civil Rights Act, as amended,

relating to sexual harassment actionable under vicarious liability standards. Both

plaintiffs suffered both hostile environment and tangible action sexual harassment. The

complaint also alleged torts of assault and battery and outrage defendant by Nacrelli

against both plaintiffs.

Jeffers and Craig are now and were at the time of the conduct complained of,

employees of the Russell County Board of Education. Both work at Ladonia Elementary

School where Jeffers is a school counselor and Craig a bus driver at Ladonia and where

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Nacrelli was their principal/supervisor before the Russell County Board of Education

voted to fire him for the sexual harassment violations.

The complaint details conduct the women were subjected to by their male

supervisor, principal Nacrelli. For years Nacrelli made crude statements and told offcolor jokes, but in the spring of 2005, Nacrelli began working out and losing weight. He

bragged about his sexual prowess and his Italian pedigree. He made a video of a female

teacher’s breasts that was accidentally shown to a school class. He repeatedly talked

about women’s anatomy, including their breasts and buttocks. He rubbed Craig’s legs and

told her he wanted to have sex with her. He appeared naked in front of Jeffers at a school

party, where he pulled down the top and bottom of another teacher’s two-piece swim suit.

Nacrelli squeezed Jeffers’ and another teacher’s buttocks at the school party. Later at

Ladonia, Nacrelli picked Jeffers up and bit her breast at school. His conduct was

pervasive and rose to the level of sexual harassment under Title VII of the Civil Rights

Act of 1964, as amended. (Exhibits A & K, affidavits of Jeffers and Craig, respectively.)

Plaintiff Jeffers confided in supervisor and Assistant Principal Brenda Coley

about the comments in the spring of 2005 and Coley herself heard off-color statements.

Despite the report to the supervisor, nothing was done about Nacrelli’s offensive conduct.

(Exhibit A)

After months of making the inappropriate comments, Nacrelli held a school party

at his home in July 2005 to which only persons who worked for Ladonia Elementary

School and their guests were invited. The purpose of the party was to honor fellow

supervisor Coley, who had been promoted to principal at another elementary school

within the system. Coley started her job as principal at Oliver Elementary in June 2005,

about a month prior to the party, and had previously served as assistant principal under

Nacrelli at Ladonia for four years. (Exhibit A, Jeffers affidavit, and Exhibit D, Coley

deposition, pp. 14 and 39)

At the school party, Nacrelli touched Jeffers’ buttocks several times, even though

Jeffers repeatedly rebuffed his advances. He attempted to pull the swimming suit off

another educator, Jamie Evans, and grabbed still another, Cile Parish, on the buttocks. He

grabbed the crotch of a male educator. Toward the end of the event, Jeffers was sitting on

the pool steps talking with Nacrelli’s wife when Nacrelli approached and put his legs

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around Jeffers’ waist. She pushed his leg away and he stood up and when she looked

around he was naked. Then he hurdled over her, touching her as he went over her head,

into the pool. (Exhibit A)

On the way home, Jeffers was so distraught that she had to pull the car over. She

called Principal Coley, who left after Nacrelli grabbed and kissed her, and reported the

incident to Principal Coley. (Exhibit A)

A few days later, Jeffers called Dewilda “Dillie” Elliott, an elected member of the

Russell County Board of Education, and reported the incident and requested a transfer to

a different school in order to get away from Nacrelli. (Exhibit A)

Despite the reports, nothing was done and Jeffers was forced in August 2005 to

report back to work at Ladonia Elementary School where Nacrelli was her immediate

supervisor. Since she was a school counselor, Jeffers reported earlier than teachers, so for

more than a week, Jeffers and Nacrelli were the only certified employees at the school in

the fall of 2005.

When Jeffers’ schedule for the year was given her, it was substantially different

from previous schedules. In prior years, she and other counselors had been allowed to

draft their own schedules but this year, after Jeffers rebuffed his advances, Nacrelli set

her schedule. He made her a schedule teaching double classes, resulting in a class size

which did not comport with state regulations. (Exhibit A)

After perpetrating the illegal schedule, Nacrelli continued creating the abusive

and hostile environment in which Jeffers was forced to work. Carrying an elementary

student down the hall, Nacrelli commented aloud that he could handle the student

because “my wife’s breasts weigh more than you do.” (Exhibit A)

Also that September 2005, a child brought a pornographic photograph to school

titled, “Chicks with Dicks.” Nacrelli told a group of second-grade teachers that afternoon

that the photograph’s subject had a larger penis than he did and breasts larger than his

wife’s. (Exhibit A)

When Jeffers complained that the door stop at school was inadequate to restrain

the door, Nacrelli told Jeffers that he didn’t like it when she talked about it being “too

short.” When a school secretary, Rose Fowles, complained that her new garbage can was

“humongous,” Nacrelli told Jeffers that women often said that about him. (Exhibit A)

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In September 2005, Jeffers was subjected to a particularly disgusting incident by

Nacrelli. Ms. Jeffers and a teacher were in an activity room counting donations for

Hurricane Katrina victims when Nacrelli approached and actually lifted her up and bit her

on her breast. (Exhibit A)

After the incident, Ms. Jeffers made a report of abuse by Nacrelli to a third

Russell County Board of Education official. School secretary Rose Fowles, well aware of

Nacrelli’s conduct, made an appointment for Jeffers to meet with Superintendent Rebecca

Lee. Jeffers told Lee of the incidents at the school party, the breast biting and other

abusive actions by Nacrelli. (Exhibit A)

Dr. Lee asked Assistant Superintendent/Personnel Director Lillian Baker to

investigate the allegations. Although the Russell County Board of Education has

numerous school campuses to which Jeffers could have been assigned temporarily,

Jeffers was forced to remain at the school with Nacrelli as her supervisor while the

investigation was on-going. Baker talked with numerous teachers and employees during

the investigation. Nacrelli finally was confronted by Superintendent Lee, but was sent

back to the school after their meeting, even though he was being suspended. Nacrelli

testified that Superintendent Lee told him to keep the matter quiet. (Exhibit B, Nacrelli

deposition, p. 104-5)

The Russell County Board of Education, including Elliott, voted to terminate

Nacrelli’s employment on November 1, 2005 and he eventually resigned rather than

exercise his right to a hearing before an impartial arbitrator appointed through the Federal

Mediation and Conciliation Service. Nacrelli had received good evaluations and

administrators testified during depositions that the only reason his employment was

terminated was because of the sexual harassment of Jeffers and Craig. (Exhibit C, Lee

deposition, pp. 46-7, and Exhibit G, Baker deposition, pp. 154-5)

Nacrelli’s abuse was not limited to Jeffers, nor Evans the teacher whose swim suit

he partially ripped off, nor Parrish whose buttocks he felt of, nor the group of teachers he

told that the child’s drawing depicted breasts larger than his wife’s and a penis larger than

his own, nor Alison Gentry, whose breasts he photographed and put on a video. During

the same period of time, Nacrelli also was harassing and propositioning school bus driver

Craig.

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During the entire time Nacrelli was Ladonia principal, Craig was a Ladonia

school bus driver. She did her job well and earned good evaluations from her supervisors.

Nacrelli’s harassment of Craig apparently began not long after he became

principal in November 1999, although she has difficulty recalling dates of incidents.

She remembers in about 2002 complaining to him, as school supervisor, about a

dangerous situation at a bus stop on Hancock Street. He volunteered to ride over with her

and when they started to come back, Nacrelli told Craig what “nice legs” she had and

started rubbing her inner thigh. When they arrived back at school, Craig attempted to

open the door but he closed it and told her that they could go “somewhere else.” Nacrelli

put his hands back on Craig’s legs and she pushed them away again and told him to get

off the bus, but he told her that she really wanted him sexually. (Exhibit K)

Not long thereafter, Nacrelli got on the bus to discipline a student and when all

students were gone, started rubbing Craig’s neck and leg. She began crying and asked

him to go . He told Craig that she hadn’t told anyone about his abuse because “you want

it.” She told him no, but she didn’t want to lose her job. (Exhibit K)

From then on, periodically Nacrelli would show up at her bus and grab his crotch

and pull on it. He did the same thing toward Craig in the hallway at Ladonia. Once when

she was in his office to report an unruly student, he grabbed his crotch and asked her if

she wanted it. (Exhibit K)

Nacrelli’s conduct was pervasive and abusive and unwelcomed. On many

occasions from soon after he became principal until he was suspended and lost his job in

2005, Nacrelli made inappropriate advances and comments to Craig, who feared losing

her job if she spoke out against her principal. She even attempted to change her looks to

dissuade him. He would stroke her hair and tell Craig how much he liked her long her, so

Craig cut her hair short. (Exhibit K)

About 2003 Craig stopped taking field trips to avoid Nacrelli. He often would

come to her bus during loading or unloading for field trips. Craig needed the extra

income from the field trips but she stopped taking them in order to avoid Nacrelli. The

trips paid about $20 each and even five trips in a month would mean $100 in extra

income – a significant amount for a driver making about $15,000 a year. She has resumed

taking the trips now. (Exhibit K)

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Craig was subjected to an incident in the spring of 2004 when she and her adult

nephew, Lamar Booker, Jr., rode their motorcycles to school to eat lunch with his sons.

Nacrelli approached her in the hall and told her she couldn’t wear a bandana at school,

but she informed him that she was off duty. As Nacrelli walked them to their motorcycles

outside he put his arm around Craig’s shoulders and when she shrugged it off, his arm

dropped and he grabbed Craig’s buttocks as his arm slid down – an incident witnessed by

Booker. (Exhibit L) After Booker cranked his motorcycle, Nacrelli stood by Craig’s cycle

and told her that he would like to ride with her and hold on by her breasts. (Exhibit K)

At a school in-service in August 2005 at the beginning of the 2005-06 school

year, Craig attended a systemwide meeting of bus drivers. When the session concluded,

drivers from the various schools broke up into individual groups. Principal Nacrelli

conducted the Ladonia meeting. He started out standing in front of the group but moved

beside Craig, so close that his legs were against hers. Nacrelli’s crotch area was inches

from her face. Two other bus drivers, Shirley Baker and Dianne McDaniel, vividly recall

the incident. (Exhibits M & N)

After school started that year, some students had problems getting on the right bus

at Ladonia, so Rudd and Nacrelli called a meeting of drivers to discuss the problem.

Nacrelli directed Craig to sit in a certain chair for the meeting and then he started to

massage her shoulders. She was embarrassed had to remove his hands from her

shoulders. (Exhibit K)

About that time, Craig decided she could not tolerate Nacrelli’s abusive conduct

any longer. She remembers talking with Assistant Superintendent Lillian Baker at

Ladonia in late August, but nothing ever came of the conversation. (Exhibit K) Craig

called Superintendent Rebecca Lee’s office and asked for an appointment, which had to

be rescheduled. When Craig finally sat down with Dr. Lee, Nacrelli already had been

suspended.

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ARGUMENT IN RESPONSE TO DEFENDANT RUSSELL COUNTY BOARD

OF EDUCATION’S MOTION FOR SUMMARY JUDGMENT

SUMMARY JUDGMENT STANDARD

A court may grant a motion for summary judgment when there exists no genuine

issue of material fact. Rule 56, Fed.R.Civ.P. The U.S. Supreme Court in Reeves v.

Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000) noted that under Rule 56, “the

court must review all of the evidence in the record, cf., e.g., Matsushita Elec. Industrial

Co. v. Zenith Radio Corp., 475 U.S. 574, 587, drawing all reasonable inferences in favor

of the nonmoving party, but making no credibility determinations or weighing any

evidence, e.g., Lytle v. Household Mfg., Inc., 494 U.S. 545, 554-555. The latter

functions, along with the drawing of legitimate inferences from the facts, are for the jury,

not the court. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255.”

ARGUMENT

SEXUAL HARASSMENT STANDARD

The Russell County Board of Education does not deny that its supervisor and

principal Charles Nacrelli committed egregious acts against plaintiffs Jeffers and Craig

that, if proven, rise to the level of sexual harassment. Further, school system officials

acted upon apparent belief in the allegations when the Russell County Board of

Education voted in November 2005 to terminate Nacrelli’s employment with the school

system. The decision to fire the administrator, who had good evaluations, was based

solely upon the findings of an investigation into allegations of sexual harassment,

according to deposition testimony of then-Superintendent Rebecca Lee. (Exhibit C, p.47)

In fact, the notice proposing Nacrelli’s termination sent to Principal Nacrelli and the

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Russell County Board of Education stated that Nacrelli’s actions had risen to the level

that “presumably violated the constitutional rights of certain employees of the Russell

County Board of Education.” (Exhibit I).

Nacrelli’s acts were so numerous that the deposition testimony of Assistant

Superintendent Lillian Baker, who conducted the investigation, consumed twenty-five

pages, just of recollecting conduct described to her by six employees. (Exhibit G, Baker

deposition, pp-117 through 141) Superintendent Lee interviewed others.

The Board voted to fire Nacrelli after investigating the sexual harassment

allegations. Under state law, §16-24-1, et seq., Code of Alabama 1975, Nacrelli was

entitled to a hearing before a fair and impartial arbitrator, but instead of taking the case to

a hearing, Nacrelli resigned. (Exhibit I)

While not denying that Nacrelli’s conduct was improper and violated laws and

policy, the Board denies liability for the actions of its supervisor, basically arguing that

neither Jeffers nor Craig followed the employer’s established reporting procedure.

However, Jeffers reported to supervisors and a board member and the board failed to

distribute any sexual harassment policy it had in place and failed to inform employees

that it even had a sexual harassment policy.

Craig, a support person, never had any instruction on sexual harassment reporting

and was unaware that the school system even had a policy. (Exhibit K) Another bus

driver, Shirley Baker, confirmed that bus drivers never had any sexual harassment

reporting instructions, nor even knew a policy existed. (Exhibit N)

The board is vicariously liable, under the law, for the offensive treatment by its

supervisor, Nacrelli.

On the same day in 1998, the U.S. Supreme Court issued landmark decisions on

actionable sexual harassment under the Title VII of the Civil Rights Act of 1964.

Confirming and expanding existing case law, 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) recognized two ways that an employer could be held liable under the

law.

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First was so-called “hostile environment” sexual harassment, while the second

was for “tangible action” harassment. In Faragher, the Court stated the basic framework

the law on employer liability:

“In order to accommodate the principle of vicarious liability for harm

caused by misuse of supervisory authority, as well as Title VII’s equally

basic policies of encouraging forethought by employers and saving action

by objecting employees, we adopt the following holding in this case and in

Burlington Industries, Inc. v. Ellerth...also adopted today: 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 of liability or damages, subject to proof by preponderance of

evidence, see Fed. Rule. Civ. Proc. 8(c). The defense comprises two

necessary elements: (a) that the employer exercised reasonable care to

prevent and correct promptly any sexually harassing behavior, and (b) that

the plaintiff employee unreasonably failed to take advantage of any

preventive or corrective opportunities provided by the employer to avoid

harm otherwise.”

In the same paragraph, the Court noted that “no affirmative defense exists” for

tangible action sexual harassment.

An application of the principles for both hostile environment and tangible action

sexual harassment demonstrates that the Russell County Board of Education faces

vicarious liability in the present case.

HOSTILE ENVIRONMENT RELATING TO JEFFERS

““And they took it as a joking matter at first, but it continued. You know it just never

stopped. It just got worse and worse.” Deposition testimony (Exhibit G, p. 122) of

Lillian Baker, then assistant superintendent and personnel director for the Russell County

Board of Education who conducted the investigation of charges of sexual harassment

against Charles Nacrelli, principal/supervisor with the school district.

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Jeffers faced a constant barrage of sexual comments and innuendos from her supervisor,

defendant Nacrelli, for years. At first Jeffers attempted to ignore them as jokes but the

unwanted conduct escalated in the spring of 2005, when Nacrelli had realized a weight

loss of close to 100 pounds and bragged of his sexual prowess. Jeffers estimates that

Nacrelli made off color comments and gestures, in addition to exposing his penis to her,

grabbing her buttocks and biting her breast, at least 25 times from the spring of 2005

through late September 2005, when he was suspended and then let go from his job with

the Russell County Board of Education. (Exhibit A, Jeffers’ affidavit) Examples of

incidents Jeffers details include (See her affidavit attached hereto as Exhibit A):

*Nacrelli stated that his Italian pedigree gave him substantial sexual powers and

even said his father had touched his (Principal Nacrelli’s) wife’s breasts and buttocks;

*Nacrelli constantly made comments about women’s anatomy to Jeffers;

*During a meeting in Jeffers’ office involving Jeffers, Nacrelli and then-Assistant

Principal Brenda Coley, Nacrelli stared at Coley’s buttocks and commented how nice she

looked in the pants Coley was wearing. When he left, Jeffers and Coley discussed the fact

that he had had an erection in his pants;

*He frequently talked about young teacher Jamie Evans in a sexual manner.

However, when Ms. Evans became pregnant, he told Jeffers that it seemed that she had

become pregnant “in her butt.”

*He told Ms. Jeffers that another teacher, Alison Gentry, was “losing it” sexually

and was jealous of Ms. Evans, who was younger. Yet one day when Ms. Gentry wore a

top with an inscription, Nacrelli told her that his had would fit perfectly in the breast area

where the inscription was located.

*A character video was being designed to show to students and Nacrelli took

close-up shots of Ms. Gentry’s breasts, which somehow was incorporated into the video.

When it was shown in the first class, the teacher was distraught and Nacrelli was forced

to run down the hallways taking up copies of the video.

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*Nacrelli made Jeffers listen to stories about his past sexual escapades, telling her

that he worked in a pizza parlor in college and that employees often would have sex in

the store after closing.

*Nacrelli told Jeffers that he and his wife sat around naked at home and had to

have sex every night.

Those comments were made during the spring of 2005. Jeffers frequently

confided in Coley, the assistant principal, about the abuse, but Coley failed to report to

higher ups. Coley admitted to being aware of Nacrelli’s conduct. She recalled Nacrelli’s

bragging about being an “Italian stud” and his own father touching his (Nacrelli’s wife)

inappropriately. (Exhibit D, Coley deposition, pages 84-5) She recalls the distribution of

a school video in which Nacrelli zoomed in on the breasts of teacher Alison Gentry and

an offensive remark Nacrelli made in a staff meeting indicating that black students at the

school were not as strong as whites. (Exhibit D, Coley deposition p. 52-3) But supervisor

Coley did not report any of the offensive conduct in the spring of 2005. Soon the abuse

would escalate.

Toward the end of the second semester in 2005, Coley was promoted to principal

of Oliver Elementary School, another Russell County Board of Education school located

in Seale. Nacrelli announced at school that a party would be held in Coley’s honor. He

planned the party at school (Exhibit H, Chaparro affidavit, and Exhibit B, Nacrelli

deposition, p. 38) and agreed to hold the school party at his house for which school

employees of Ladonia Elementary and their guests were invited. During his deposition,

asked if anyone was there who was not an employee of the Russell County Board of

Education nor a guest of an employee, Nacrelli replied, “If you weren’t a guest or

employee, you would have just been a stranger who crashed the party. So the answer

would have been ‘no.’” (Exhibit B, p. 47)

In her affidavit (Exhibit A), Jeffers described the conduct she was subjected to by

her supervisor, Principal Nacrelli, at the school party:

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“...During the evening, Mr. Nacrelli on more than one occasion squeezed my buttocks

and I had to move his hand and express my displeasure with his conduct. I tried to avoid

him but he would show up behind me. I don’t think Mr. Nacrelli had had very much to

drink when he first touched my behind. I witnessed him chasing Cile Parish around the

house, trying to squeeze her buttocks and on occasion being successful. I heard about him

pulling the top and bottom of Jamie Evans’ two-piece bathing suit down. I was about to

leave when Jerri Nacrelli, Mr. Nacrelli’s wife, asked me to come outside to speak with

her about a comment she had made about a teacher who was leaving Ladonia

Elementary. We sat on the steps at the pool and Mr. Nacrelli appeared and sat down

behind me and put his legs around me. As tactfully as I could with his wife sitting there, I

tried to push his legs aside. He stood up and I turned around and he was naked. I

screamed and he leap-frogged me into the pool, pushing my head down as he went. I

went into the house to retrieve my items and he appeared there with his swim suit on

inside-out and his wife told her adult daughter that she was ‘not going to believe’ what

Mr. Nacrelli had done, to which the daughter replied something like this, ‘What? Did he

get naked again?’”

Jeffers had gone to the party only at the urging of and out of respect for Coley to

begin with. (Exhibit D, Coley deposition, p. 40) After Nacrelli exposed himself, Jeffers

left the party but was so shaken she had to pull over on the way home. She called

Principal Coley to report the incident. (Exhibit A, Jeffers’s affidavit, and Exhibit D,

Coley’s deposition testimony.) Coley also witnessed and was victim of Nacrelli abuse

that night. She stated that she witnessed Nacrelli grab teacher Cile Parrish’s buttocks and

grab educator Jason Hopper’s crotch (Exhibit D, Coley’s deposition testimony, p. 50-51),

and was “shocked” when Nacrelli kissed her on the lips (Exhibit D, Coley’s deposition

testimony, p. 46)

Stressed even more by the party incident, Jeffers did not know whether she could

bear going back to school and working under Nacrelli’s supervision, so she called Dillie

Elliott, a member of the Russell County Board of Education, a few days after the school

party. She reported the pervasive abuse to Elliott and asked for a transfer. (Exhibit A,

Jeffers’ affidavit and Exhibit F, Elliott’s deposition testimony.)

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Despite the reports to an administrator and a member of the board, which is the

governing body for the school district, no disciplinary action was taken against Nacrelli

and Jeffers was not transferred. When Jeffers reported for school, with her and Nacrelli

being the only certificated employees there for about the first week, the abuse continued.

She relates the following incidents which happened after school began that year, 2005-06

(Exhibit A):

*Nacrelli was carrying a student to be disciplined down the hall, cradling the

student under his arms, when he said in a voice Jeffers could hear, “Andrew, I can handle

you. My wife’s breasts weigh more than you do.”

*In September 2005, Jeffers had duty in a hallway near the door and told Nacrelli

that the door stop was not long enough to adequately restrain the door, to which Nacrelli

replied, “I don’t like it when you talk to me about it being too short.”

*In September 2005, Nacrelli picked Jeffers up and bit her on the breast. She

described the incident in her affidavit:

“I remember another incident which occurred on September 9, 2005. I was in a

room with Kelly Brantley Howard counting money students had donated for Hurricane

Katrina victims. Mr. Nacrelli came in and I asked him if he would carry a heavy

strongbox filled with change to his office. At that point, he picked me up and rolled me

forward toward him and bit me on the right breast. I screamed and he put me down and

apologized. I did not, as one defendant’s pleading with the court indicates, at any time

dare him to pick me up. And despite what was stated in the same pleading, the breast

biting was not accidental, as I explained during my deposition. He would not have told

me, as he did, “I guess I should not have done that,” if the biting had been accidental. Ms.

Howard told me she saw him pick me up but apparently she could not witness the breast

biting from where she was standing.”

*About a week later another embarrassing incident occurred. A child brought a

pornographic photo, titled “Chicks with Dicks,” of a woman with breasts and a penis. I

was shown the photo by new Assistant Principal Grant. Mr. Nacrelli disciplined the child

and during a meeting of second-grade teachers that day described the subject in the photo

as having “breasts bigger than my wife’s and her dick was longer than mine.” The

elementary teachers were astonished by the statement.

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Nacrelli admitted that “Chicks with Dicks” incident but stated that he used the

term penis. (Exhibit B, Nacrelli deposition, pp. 78-80) Relative to conduct at the party,

Nacrelli admitted that he kissed Coley (Exhibit B, Nacrelli deposition, p. 54). Although

he remembers that kiss, Nacrelli does not remember sticking his hand down Alison

Gentry’s shirt but doesn’t deny it (Exhibit B, Nacrelli deposition, p. 55-6), does not recall

pulling down the top or bottom of teacher Jamie Evans’ swim suit (Exhibit B, Nacrelli

deposition, p. 56), does not recall appearing naked in front of Jeffers, nor squeezing her

buttocks (Exhibit B, Nacrelli deposition, p. 57), and does not recall grabbing

administrator Jason Hopper’s crotch (Exhibit B, Nacrelli deposition, p. 57) Nacrelli’s

explanation was that he was drunk. (Exhibit B, Nacrelli deposition, p. 56)

Nacrelli does recall picking Jeffers up and rolling her forward and his lips making

contact with Jeffers’ breast. “I could have nipped her shirt,” but “don’t remember

chomping down,” he testified. (Exhibit B, Nacrelli deposition, pp. 76-7)

Nacrelli’s conduct affected Jeffers’ working conditions. She avoided him, even if

she needed to meet with him. She took all the sick and annual leave days she could. She

quit staying after school to work, but left as quickly as possible. (Exhibit A)

Jeffers had complained to then-Assistant Principal Coley and later to Coley after

she had become principal. She reported the abuse to board member Elliott and asked for a

transfer. But she got no results, so not long after the “Chicks with Dicks” incident, Rose

Fowles, the school secretary, called the office of Superintendent Rebecca Lee to set up an

appointment for Jeffers to meet with Lee. Another counselor, Nuria Chaparro, sat in.

(Exhibit H, Chaparro affidavit)

Lee expressed surprise with the allegations and ordered an investigation. Yet

while the investigation was on-going (from Tuesday through Friday according to Lee’s

records), Jeffers was sent back to work at Ladonia School, where the accused abuser was

her supervisor, even though Russell County has numerous school locations that she could

have worked in temporarily. Jeffers had exhausted her sick leave trying to avoid being

around Nacrelli, so she had to go back to the school site. The investigation was conducted

at Ladonia Elementary creating a very stressful situation for Jeffers (Exhibit A):

“The days of the investigation were horrible for me. Ms. Lillian Baker, the

assistant superintendent, conducted the investigation at Ladonia. Teachers who were

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interviewed were coming out of the room crying. Mr. Nacrelli was always around. At one

point that week he made the statement to me that it sure was getting difficult to work

around there.”

The abuse continued, even as the investigation was continuing, as Jeffers

explained in her affidavit (Exhibit A): “On September 21, I remember Mr. Nacrelli

making still another offensive statement. We were in Ms. Fowles office and she had

gotten a new garbage can and she was complaining that it was too big, was ‘humongous.’

Mr. Nacrelli looked at me and made the comment, “I hear that all the time about me.”

Nacrelli was suspended from his job, but even after he met with Superintendent

Lee on September 23, 2005, at the conclusion of the investigation and she informed him

of the suspension, Nacrelli was allowed to go back to Ladonia Elementary. He explained

in his deposition (Exhibit B, pp. 104-5): “...She told me it will be an out-of-sight/out-ofmind thing and we’ll investigate it, and this thing will be fine and it’ll blow over. I’m

sure we can come to, you know, terms with this or whatever and I will call you up. And

that was a Friday afternoon, maybe about two o’clock. I went back to work. She told me

to go ahead and just go on back to work, don’t say anything to anybody, and then just go

ahead and go home at the regular time at the end of the day, and that’s what I did...”

Nacrelli’s suspension apparently began after school that day, September 23, 2005.

The Russell County Board of Education voted on November 1, 2005 to cancel his

employment contract and Nacrelli resigned on February 15, 2006, rather than exercise his

right to a hearing before an arbitrator. (Exhibit I)

The abuse Jeffers was forced to endure rose to a level which allows her to hold

her employer vicariously liable. “We have made clear that "[t]o prove sexual harassment

under Title VII, a plaintiff must show (1) that she belongs to a protected group; (2) that

she has been subjected to unwelcome sexual harassment; (3) that the harassment was

based on her sex; (4) that the harassment was sufficiently severe or pervasive to alter the

terms and conditions of employment and create a discriminatorily abusive working

environment; and (5) that a basis for holding the employer liable exists." Hulsey v. Pride

Rests., LLC, 367 F.3d 1238, 1244 (11th Cir. 2004).

Jeffers is a member of a protected group; she is a woman. She was subjected to

unwelcome sexual harassment. (Exhibit A) She was harassed because of she is a woman.

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The harassing conduct was of a sexual nature and forced her into a less than envious

position in that she could not perform her job normally because she avoided her direct

supervisor at all costs. (Exhibit A) The harassment altered the terms of her employment,

forcing her to avoid her own supervisor and even use the bulk of her sick leave to avoid

him. (Exhibit A) And a basis for holding the employer liable exists because after she

reported the abuse to a school district supervisor (Coley) and board member (Elliott), no

action was taken. She did not unreasonably fail to take advantage of an employer’s

protective and reporting devices. In addition, she was subjected to a tangible employment

action, for which the Faragher/Ellerth affirmative defense does not apply.

Little question exists as to whether Jeffers’ abuse meets the first three criteria. The

case clearly meets the other two as well.

Jeffers was forced to endure a hostile work environment. “To be actionable under

Title VII, a hostile work environment must be both ‘objectively and subjectively

offensive, one that a reasonable person would find hostile and abusive and one that the

victim in fact did perceive to be so.’” Faragher524 at 787.

“In assessing whether harassment is objectively severe and pervasive, courts

typically look to (1) the frequency of the conduct; (2) the severity of the conduct; (3)

whether the conduct was physically threatening and humiliating or just a mere utterance;

and, (4) whether the conduct unreasonably interferes with the employee’s work

performance.” Faragher 524 U.S. at 787-88.

In Jeffers’ case, the conduct was severe and pervasive – an estimated 25 or more

instances from the spring of 2005 through Nacrelli’s suspension on September 23, 2005

and included not only verbal abuse, but unwanted touching of her buttocks, exposing of

genitals and biting of her breast. Jeffers considered it abusive (Exhibit A) and any

reasonable person would have.

In Hulsey, the 11th Circuit found approximately eighteen incidents over a period

of about 2 1⁄2 weeks to be sufficiently severe and pervasive to hold the employer liable.

Jeffers was exposed to more than twice as many instances of abuse over a longer period

of time.

In addition, Jeffers perceived the abuse to be severe and pervasive. “We have said

that sexual harassment is subjectively severe and pervasive if the complaining party

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perceived it to be at the time.” Hulsey, quoting Johnson v. Booker T. Washington Broad.

Serv., 234 F.3d 501 at 509 (11th Cir. 2000).

Even with severe and pervasive harassment, such as that suffered by Jeffers, an

employer has available an affirmative defense if it is demonstrated that the employee

failed to take advantage of an effective sexual harassment policy which includes a

reporting system.

“... When no tangible employment action is taken a defending employer

may raise an affirmative defense of liability or damages, subject to proof

by preponderance of evidence, see Fed. Rule. Civ. Proc. 8(c). The defense

comprises two necessary elements: (a) that the employer exercised

reasonable care to prevent and correct promptly any sexually harassing

behavior, and (b) that the plaintiff employee unreasonably failed to take

advantage of any preventive or corrective opportunities provided by the

employer to avoid harm otherwise.” Faragher at 807-8.

Jeffers reported the unwelcome sexual comments to supervisor Coley on

numerous occasions in the spring of 2005 and Coley was well aware of events of which

she had personal knowledge but Nacrelli was not disciplined. Jeffers reported to

supervisor Coley the fact that he exposed himself to her at the school party in July 2005

and Coley was well aware of other events she witnessed at the party. Nacrelli was not

disciplined. Jeffers called board member Elliott in early August 2005 to report the

repeated abuse and ask for a transfer. Nacrelli was not disciplined. Jeffers reported the

sexual harassment to superintendent Lee in September 2005. An investigation was

conducted at Ladonia Elementary, but while the investigation was on-going Nacrelli

stayed on the job with an office just 30 feet or so from Jeffers’. The supervisor continued

the off-color remarks even as the investigation was on-going. (Exhibit A)

Under the circumstances, the employer did not exercise “reasonable care to

prevent and correct promptly any sexually harassing behavior.”

But even if it had, the Russell County Board of Education cannot escape liability

because Jeffers did not unreasonably fail “to take advantage of any preventive or

corrective opportunities provided by the employer to avoid harm otherwise.”

The Russell County Board of Education’s claim to the affirmative defense is

based upon its assertion that it had an effective sexual harassment policy in place and that

its contention that Jeffers’ first report under the policy was when she met with Dr. Lee on

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September 20 – months after she had begun reporting to school system administrator and

Assistant Principal Coley and had reported to board member Elliott.

Assistant Superintendent/Personnel Director Lillian Baker testified during

depositions that in 2005, the Russell County Board of Education had in place Policy

GAJDBH, relating to sexual harassment. The policy (Exhibit E) at section I.A.C. states

that: “Each administrator shall be responsible for promoting understanding and

acceptance of, and assuring compliance with, state and federal laws and board policy and

procedures governing sexual harassment within her or his school or office.”

That would place a burden upon administrator Coley to take steps to stop, while

reporting to higher ups, Nacrelli’s abusive conduct toward Jeffers in the spring of 2005

and to have reported his exposing himself to Jeffers and other intentional acts at the pool

party in July 2005.

At III. A. “Reporting Procedures,” the policy states that, “Any employee who

feels he/she has been sexually harassed by another employee(s) or student(s) of the

School System should present the complaint directly to the School System Title IX

Coordinator (Personnel Director).”

Because of that statement, the Russell County Board of Education argues that

Jeffers’ complaints to Coley and Elliott were ineffective. Yet, Title IX coordinator Baker

admitted that she never could recall informing school system employees who the Title IX

coordinator was. (Exhibit G) Even Nacrelli admitted that he did not know who the Title

IX coordinator was. (Exhibit B, p. 24)

Moreover, Jeffers testified that she never had been given any training in sexual

harassment or the reporting of harassment during the 30 years she has worked with the

school system until 2006, after this lawsuit was filed. (Exhibit G) Jeffers’ testimony was

bolstered by that of school board member Elliott who testified during the 13 years she

worked for the Russell County Board of Education ending in 1999, she never had any

training on reporting of discrimination in general and couldn’t remember any on sexual

harassment. (Exhibit F, p. 45-6)

Assistant superintendent and personnel director Baker testified that the only

school district sexual harassment training she could recall, other than the 2006 class after

the lawsuit was file, was for principals in 2005. (Exhibit G, p.165-7 ). Superintendent Lee

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stated that she could not remember any training specifically on sexual harassment for

Russell County Board of Education employees, stating that the policy was in the manual.

(Exhibit C, p. 14). While the policy states that the report “should” be made to the Title IX

coordinator at the Central Office, Dr. Lee stated that employees should report sexual

harassment “at their particular local site first.” (Exhibit C, p. 21) She stated the principal

would be the person in charge at the school level and stated that assistant principals are

administrators who can receive reports also. (Exhibit C, p. 22):

“A. Assistant principals are considered administrators.

“Q. So if the principal is absent or the one doing the harassing, couldn’t

they report it to the assistant principal?

“A. If each administrator is responsible (in reference to the language so

stating in the policy), I guess they could.”

Later in the deposition (Exhibit C, p. 31), Dr. Lee bolstered that previous

testimony: “...If the principal was involved, then I would assume the assistant principal

would then take it to the next level and report it to a central administrator, someone at

central office.”

Of course, Assistant Principal/Principal Coley did not make the report to central

office personnel, as required, and Lee admitted that failure to make a report violated

proper school system procedure. (Exhibit C deposition, p. 54):

“A. Well, I think her (Coley’s) obligation was not to try to figure out what the

degree was occurring, but she obviously didn’t do that. Again –

“Q. It was her obligation to report it to you or Ms. Baker?

“A. Well, I guess what I’m saying is in my conversation with Ms. Coley, I got the

impression that she didn’t feel, for whatever reason, that it was not serious enough to

report it. Was it serious enough and was there harassment? Well, that’s not a call

necessarily that we should try to figure out.

“Q. So what should she have done?

“A. She probably should have reported it.”

Lee, the superintendent when the abuse took place, also admitted that it is proper for an

employee to lodge a complaint with a board member and that the board member “should

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then refer that to the superintendent to investigate.” (Exhibit C, p. 34) Of course Elliott

failed to report Jeffers’ complaint to Lee.

Policy GAJDBH is the official school system policy. Each school has a manual,

which Lee said normally is kept in the front office (Exhibit C, p. 25) that has the policy

within it. Asked if that’s principal’s office, she replied that it could be or the manual

could be kept in the media center.

Separate from the official policy is a booklet titled, “Student Academic Plan &

Statement of Responsibilities” and subtitled, “A Handbook for School Personnel Parents

& Students.” That document is given to teachers and parents each year and includes a

policy on sexual harassment, although Baker argued that the policy was not the official

policy of the district. (Exhibit G at p. 24-5)

Title IX coordinator, personnel director and Assistant Superintendent Baker stated

that the handbook policy is different from the official policy and “We’ve got to fix it” and

that the sexual harassment policy “needs to be in compliance with Board policy.”

(Exhibit G, at p. 24-5)

The handbook policy is titled “Sexual Harassment Policy for Students,” but

forbids sexual harassment of employees and students and states, “Any person, employee,

or student, who alleges sexual harassment by a staff member or student in the School

District may file a complaint with the principal. In addition, each school shall designate

one male and one female employee to whom complaints may be made.” (Exhibit E,

“official” and “unofficial” policies)

Thus, the official policy states that reports are only to be made to the Title IX

coordinator, but the unofficial policy given to employees is primarily for students, but

states that complaints can be made to the principal, although that would have been

impractical in Jeffers’ case. The unofficial policy requires schools to designate one male

and one female to report abuse to, but that was not done for Ladonia.

Moreover, Lee testified that reports could be made to an assistant principal, such

as Coley, or a board member, such as Elliott, which Jeffers did.

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The situation is similar to the Faragher case in that the employer failed to

disseminate its policy to employees. Moreover, the report in Faragher was to an

intermediate manager.

The Russell County Board of Education wants to argue that grabbing of Jeffers’

buttocks and exposing of his genitals was at a purely social gathering rather than an

official school function. The party was planned at school as witnessed by counselor

Chaparro (Exhibit H) and confirmed by Nacrelli (Exhibit B, p. 38) and was only for

Russell County Board of Education employees and their guests. (Exhibit B, p. 47) It

served purely a school function, to recognize Coley’s promotion. (Exhibit D, p. 39) Coley

and Nacrelli obviously were not close friends who would be throwing parties for each

other, since she accused him of lying about support for her for assistant principal.

(Exhibit D, p. 39) In addition, Coley, an African-American, found “inappropriate”

(Exhibit D, p. 53) Nacrelli’s statement at a faculty meeting that “the black students were

not academically as strong as white students.” (Exhibit D, p. 52) Asked if he considered

Coley a friend, Nacrelli responded that his relationship with Coley was “more of a work

relationship.” (Exhibit B, p. 34)

The party was a school function, but regardless, noteworthy is the fact that in the

great number of sexual harassment cases, at least part of the harassment takes place at a

location different from the work setting.

One case defendant Russell County Board of Education relies on is Baldwin v.

Blue Cross, USCA 05-15619 (11th Cir. 2007). In that case much of the alleged abuse took

place off-premise at social gatherings. The Court found that Baldwin did not meet her

burden, due in part to testimony of fellow employees and the fact that Blue Cross’

investigation failed to reveal non-consensual, abusive conduct. In the instant case,

Jeffers’ complaint was bolstered by the statements of fellow employees during the

investigation, which led to Nacrelli’s employment termination. In Blue Cross, the

company investigation found no sexual harassment, while in the Jeffers case, Nacrelli

was fired for sexually harassing employees. In addition, Assistant Superintendent Baker,

who investigated, could find no evidence that Jeffers promoted or consented to any of

Nacrelli’s conduct. (Exhibit G, 162-3)

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The off-premise harassment is addressed in Griffin v. City of Opa-Locka, 261

F.3d 1295 (11th Cir. 2001). Griffin was harassed by the city manager and her reports fell

on deaf ears. A musician, she performed at a Rotary Club event one night. Griffin had

arranged for a ride home, but the city manager, Earnie Neal, canceled it and took her.

When they arrived, he picked up her instrument and carried it in for her and then raped

her.

The city claimed it was not liable under Title VII and otherwise because Neal

acted outside the scope of his employment and because the incident occurred after a

social gathering, rather than on the job. The 11th Circuit rejected the argument: “...We do

not believe that under the facts of the case that we are required to view the sexual assault

in isolation or ignore Neal’s persistent abuse of authority leading up to the assault in

making our color of law determination. Rather, we believe that the entire pattern of abuse

and harassment against Griffin that eventually culminated in her rape is relevant to our

color of law analysis. In other words, Neal’s official interactions with Griffin as her boss

during and after work hours, his continual sexual harassment of her during those

interactions, and the ultimate sexual assault constitute an indivisible, ongoing series of

events. Doe v. Independent School District, 15 F.3d 443, 461 (5th Cir., cert. denied, 513

U.S. 815, 115 So.Ct. 70, 130 L.Ed. 2d 25 (1994).”

Numerous other cases have recognized that part of the abuse takes place away

from the business. For instance, in Crowley v. L.L. Bean, Inc., 303 F.3d 387 (1st Cir.

2002), among the acts Crowley complained of was that a co-worker curiously massaged

her feet at a company pool party. The Court refused to overturn the District Court’s

verdict.

Even Lee, superintendent when the abuse took place, admitted that a supervisor’s

calling an employee after work and proposing her could amount to sexual harassment in

violation of school board policy. (Exhibit C, pp. 50-51) Would not after-hours exposing

his genitals rise to the level of a call, when the victim who received the call could simply

hang up?

The issue is not where a single incident took place because like in Griffin,

Nacrelli’s conduct constituted “an indivisible, ongoing series of events.” Courts consider

the totality of the circumstances.

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Although Nacrelli cannot be sued individually under Title VII, his summary

judgment response accused Jeffers of “flirting with men” at the party and stated that she

had told a joke at school. The age-old “blame the victim” approach fails, however. In her

affidavit, Jeffers states: “One brief filed in this case accuses me of flirting at the pool

party. I did not flirt with men at the party. I hugged the neck of Ken Coley, Brenda

Coley’s husband, and congratulated them on her promotion. I have known both of them

for many years. I did not hug him or anyone else in a sexual manner. Reference also was

made to the “mouse” joke. That is a joke that was going around with women teachers at

the time. I never told it in Mr. Nacrelli’s presence, but only to female teachers. Reference

was made to a “fuzzy visa” joke also. That was a joke told by a friend who now is

deceased. I was asked to tell it by other teachers once or twice and I did, but not in Mr.

Nacrelli’s presence. I would never do that.”

Jeffers hugging or telling an off-color joke would only be relevant to show

consent. Jeffers strongly denies she ever consented to any of Nacrelli’s abusive conduct

(Exhibit A) and the third party who did the investigation, Assistant Superintendent Baker,

stated she found no evidence whatsoever of any consensual conduct on Jeffers’ part. As

Baker put it, “...From all indications, she was not the only person that he did sexual

things to or said sexual things about. So I can’t say she prompted his because there was

so many others involved.” (Exhibit G, p. 161-2)

“The gravamen of sexual harassment cases is whether the conduct complained of

was “unwelcomed.” Meritor Savings Bank v. Vinson, et al., 477 U.S. 57, 106 S.Ct. 2399,

91 L.Ed. 2d 49 (1986), In Jeffers’ case, Nacrelli’s advances were not welcomed.

Based upon the foregoing, the Russell County Board of Education’s affirmative

defense fails on each of the two prongs in that the employer Russell County board failed

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to exercise reasonable care to prevent and correct promptly any sexually harassing

behavior. In addition, Jeffers did not unreasonably fail to take advantage of any

preventive or corrective opportunities provided by the employer. She reported the abuse

in a manner acceptable to the superintendent and in accordance with the “unofficial”

policy provided employees and described by administrators. Only on her report to a third

administrator did the employer institute an investigation.

TANGIBLE ACTION RELATING TO JEFFERS

“As defined by the Supreme Court, a tangible employment action is ‘a significant

hiring, firing, failing to promote, assignment with significant different responsibilities, or

a decision causing a significant change in benefits.’” Hulsey quoting Ellerth t 761, 118

S.Ct. at 2268.

As a tenured educator, Jeffers enjoys job protection under the Alabama Teacher

Tenure Act, §16-24-1, et seq., Code of Alabama 1975. She was not subjected to a

demotion or employment termination for reporting or rebuffing Nacrelli’s advances.

Jeffers was given an assignment in the fall of 2005 with “significant different

responsibilities.” Traditionally counselors at Ladonia had drawn up their own schedules,

Nacrelli assigned her double classes with more than 30 students in 2005-06 in violation

of Alabama law which capped early grade pupil teacher ratio at 18-to-1. (Exhibit A)

Jeffers and counselor Chaparro protested and the schedule was changed. It still

was unacceptable and was changed again, but only after Nacrelli was confronted. “I

believe Barbara and Ms. Chaparro sat down and redid it more so or – and I believe I was

part of that too. I did back off on a lot of it. Yeah, we had a good heated discussion, I

think, a little bit about it. I was trying to set it.” (Exhibit B, p. 88).

Then-Superintendent Lee testified that she ordered more structured schedules for

counselors for 2005-06 and stated that state guidelines allowed some deviation from the

18-student target, but admitted that double classes would have been excessive (Exhibit C,

pp. 43-4):

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“Q. Could they have two classes, a counselor teach two elementary classes if the

teacher – one teacher had 16 students and the other had 18, could a counselor then have

34?

“A. Well, I don’t think you would want to do that. I’m just saying you could

exceed the 18...”

Jeffers stated that she believed Nacrelli imposed the illegal schedule on her

because he wanted to show her he still was in control, even if she had reported his prior

acts. (Exhibit A) That discretion rose to the level of creating a hostile work environment

and amounted to a tangible employment action as well.

EEOC CHARGE OF DISCRIMINTATION ISSUE

Defendants Russell County Board of Education and Nacrelli each point out,

without explanation, that Jeffers’ first Charge of Discrimination filed with the U.S. Equal

Employment Opportunity Commission (EEOC) was dismissed.

The charge of discrimination was received by the EEOC regional office on

December 23, 2005 and dismissed six days later on the basis that Jeffers complained of

conduct which first started at least four years earlier. (Exhibit J) Apparently, the EEOC

official took the position that if the first instance of the continuing abuse is not reported

immediately, the victim could never complain. At any rate, the EEOC could not possibly

have investigated to determine whether the Russell County Board of Education had a

viable policy which Jeffers unreasonably fail to avail herself of, since the Board office

was closed for the holidays during the six-day period in which the complaint was before

the EEOC.

Jeffers filed a Motion for Reconsideration (Exhibit I), explaining that the conduct

had escalated in the spring of 2005 and that she had reported to Assistant

Principal/Principal Coley, Board Member Elliott, and Superintendent Lee. The Charge

was reinstated and ultimately a neutral Right to Sue notice was issued because the EEOC

was unable to investigate within 180 days. (Exhibit I) The Notice of Right to Sue was

issued on May 10, 2006 (Exhibit I) and the lawsuit was timely filed on August 3, 2006.

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HOSTILE WORK ENVIRONMENT RELATING TO CRAIG

In the interest of brevity, plaintiff Craig readopts all previous paragraphs with

regard to summary judgment standards and statutory and case law provisions relating to

sexual harassment, except to restate for the record that the U.S. Supreme Court

recognized hostile environment and tangible action sexual harassment 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 harassment against Craig also was egregious, occurring an estimated two

dozen or more times over a three-year period ending only with Nacrelli’s suspension in

September 2005 and included propositioning for sex and crude statements and gestures.

Defendants assert that Nacrelli was not Craig’s supervisor, but rather she was

supervised by John Rudd, the systemwide transportation supervisor. That, however,

conflicts with assertions in affidavits of Craig (Exhibit J) and fellow bus drivers Dianne

McDaniel (Exhibit K) and Shirley Baker (Exhibit L). In addition, it conflicts with

statements in the bus driver manual which direct bus drivers to give discipline

information to the principal and not to use the bus for any reason except to transport

students to and from school, without express approval of the principal or superintendent.

(Exhibit J, Exhibit 1 thereto)

Regardless, a hostile work environment can be perpetrated by a supervisor or a

fellow employee. “The supervisor does not have to be the harasser for this (hostile work

environment) this kind of sexual harassment to occur, although experience has proven

that he often will be.” Hulsey.

The issues then relate to whether the employee, Craig, was subjected to

pervasively hostile work environment and, if so, whether she failed to advantage of an

effective sexual harassment policy. The facts demonstrate that she was exposed to a

hostile environment and that the Faragher/Ellereth affirmative defense fails, because the

Russell County Board of Education did not distribute its “official” policy to support

employees and never even informed the support employees that a policy existed. In

addition, she was subjected to tangible action sexual harassment.

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The sexual harassment was pervasive under the Faragher/Ellerth standards.

Craig estimates that during a period of about three years from about 2002 forward,

Nacrelli subjected her to improper and unwanted sexual advances, touchings and obscene

gestures and statements “two dozen times or more.” (Exhibit D)

In her affidavit, Craig recounts some of the harassment:

*Principal/supervisor Nacrelli offered to ride with her to the Handcock Street

pickup in 2002. As they were leaving, he rubbed her legs and told her how soft her legs

were. She told him, “Don’t even go there,” but he kept telling her how he would like to

get with her for sex. When they got back to school, when she opened the door for him to

get off, he closed it and started rubbing her hair and her legs up toward her crotch. Craig

continuously pushed his hands away, but he would laugh and tell her that she wanted

him.

*A few weeks later, Nacrelli came on the bus to discipline a student. After the

student exited, leaving them alone, Nacrelli started rubbing her neck and leaned over and

started rubbing her legs. He told her she had nice breasts and he would like to get her in

bed and caress them. He made a reference to the sexual prowess of Italian men.

*Numerous times in the next few years, Nacrelli would grab his pants and

squeeze his penis. He did it at her bus and in the hallway and in his office at school. He

would brag about Italian men and tell her he was a “woman’s man.”

*In March 2004, Craig and her nephew rode their motorcycles to school to eat

with her grandnephews. Nacrelli followed them to their bikes and put his arm around her

as they were walking. She shrugged it off, but as it slid down her back-side, he squeezed

her buttocks. That unwanted touching was witnessed by her nephew. (Exhibit L) When

they got out to their motorcycles and cranked them, Nacrelli told her that he wanted her

to take him for a ride and that he would hold on by her breasts.

*In August 2005 during an inservice before the school term started, school bus

drivers had a systemwide meeting. Transportation supervisor Rudd conducted the overall

meeting and Nacrelli ran the break-out meeting for Ladonia Elementary. Nacrelli was

standing in front of the Ladonia drivers when the meeting started, but he moved over and

was standing so close to Craig that their legs touched. His crotch was a few inches from

her face. Two other bus drivers witnessed the odd behavior. (See Exhibits M & N)

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*After school started in 2005, some students were having difficulty getting on the

right bus, so a meeting of Ladonia drivers was held to discuss routes. Nacrelli directed

Craig to sit at a particular spot and during the meeting stood behind her and rubbed her

shoulders. She had to take his hand off her. (Exhibit K)

Craig indicates that she saw Assistant Superintendent/Personnel Director Baker at

Ladonia one day around the end of August and mentioned the harassment to her but

Baker “did not seem really interested.” (Exhibit K) Although she did not experience any

embarrassing incidents during the time after she spoke with Baker, Craig very much

continued to be subjected to a hostile work environment until Nacrelli was suspended.

She avoided her principal, even if she needed to make a report to him on a student

disciplinary or safety issue. (Exhibit G)

The sexual harassment was pervasive and altered Craig’s working environment.

In her affidavit she states:

“In fact, from the time Mr. Nacrelli started that harassment, it affected my ability

to do my job and the way I did my job. The harassment lowered my self esteem and I did

not want to go to work, even though I needed to. I avoided Mr. Nacrelli at all costs. I

would not go to the office and report student matters relating to discipline or safety or

anything else to my principal because I feared that he might start in on me again.”

(Exhibit G)

“To be actionable under Title VII, a hostile work environment must be both

‘objectively and subjectively offensive, one that a reasonable person would find hostile

and abusive, and one that the victim perceives to be.” Faragher, 524 U.S. at 787, 118

S.Ct. at 2283. Certainly a reasonable person may well conclude, as plaintiff Craig does,

that the abuse she endured was objectively and subjectively offensive. It met the

Faragherfour-prong test in that it was frequent, severe, humiliating and interfered with

her work performance.

Even so, the employer Russell County Board of Education could escape liability

if it can show that Craig it had an effective policy relating to sexual harassment in place

and employee Craig unreasonably failed to avail herself of it.

Assistant Superintendent Baker testified that the official sexual harassment policy

of the school system was policy GAJDBDH, which states that a report of sexual

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harassment should be made to the system’s Title IX coordinator (Exhibit G, p. 42) She

also states that the school system’s student handbook, given teachers and employees, has

a section on sexual harassment, but that it conflicts with the official policy that the

handbook policy is different from the official policy and “We’ve got to fix it” and that the

sexual harassment policy “needs to be in compliance with Board policy.” (Exhibit G, at

p. 24-5)

The Russell County Board of Education argues that Craig should have reported

the abuse to her supervisor, Rudd. But the policy states otherwise and the handbook

conflicts with the policy, as Baker states.

Moreover, Russell County Board of Education school bus drivers never have

received any training on sexual harassment.

In her affidavit, Craig states, “This entire matter made me scared because I am

just a bus driver and Mr. Nacrelli was a principal. I didn’t know who to report it to. I

never even knew the Russell County Board of Education had a sexual harassment policy.

During the 15 years I have worked for the Russell County Board of Education, we never

had any instruction on sexual harassment or the reporting of it until 2006 after this case

was filed and then the training was offered on a voluntary basis. If there was a manual in

the Ladonia principal’s office telling us how to report sexual harassment, as Dr. Lee said

in her deposition, I didn’t know anything about it. I have a high school education and

have received good evaluations in my job, but I didn’t know anything about reporting

sexual harassment and never had any classes on it until after our lawsuit was filed.”

(Exhibit D)

Craig’s statement is bolstered by the testimony of Ms. Elliott, member of the

Russell County Board of Education, the governing body for the school system. Before

being elected to the board and a two-year intermittent job with the county, Elliott worked

as a secretary for the Russell County Board of Education. She was a non-classified or

support person, just like Craig in her 13 years on the job. During her deposition (Exhibit

F, p. 45-6), Elliott testified:

“Q. Okay. Do you recall any training that you had as an employee on reporting of

discrimination of any sort?

“A. I never received any training.

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“Q. Do you recall receiving any training on the reporting of a sexual harassment

complaint?

“A. While I was an employee o the Russell County Board of Education?

“Q. Right.

“A. No.

“Q. You never received any?

“A. Not that I remember, no.”

Craig’s statement is further bolstered by the affidavit of fellow bus driver Shirley

Baker (Exhibit N): “During the time I have worked for the Russell County Board of

Education, I have never had any training in sexual harassment or the reporting of sexual

harassment. I was not even aware that the school system had a sexual harassment policy.”

Those three persons’ statements are further bolstered by deposition testimony of

Superintendent Lee, Assistant Superintendent/Personnel Director Baker and even

Principal Nacrelli. Lee, superintendent when the abuse occurred, said she could not recall

a training session specifically on sexual harassment. (Exhibit C, p. 14). Baker said sexual

harassment training was given to administrators in 2005-06 and to all employees for the

2006-07 year (after the lawsuit was filed) (Exhibit G, pp. 156-7). Nacrelli, who worked

for the Russell County Board of Education from 1991 through 2005, stated that he could

never recall any training on sexual harassment by his employer. (Exhibit B, p. 21).

Nacrelli’s harassment of Craig was severe and pervasive such that a reasonable

person would have found it offensive. Moreover, it cannot be stated that “the employer

exercised reasonable care to prevent and correct promptly any sexually harassing

behavior” nor that “the plaintiff employee unreasonably failed to take advantage of any

preventive or corrective opportunities provided by the employer to avoid harm

otherwise.” Faragher

The affirmative defense fails.

TANGIBLE ACTION SEXUAL HARASSMENT RELATING TO CRAIG

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A second way to show that a person was a victim of sexual harassment in

violation of Title VII of the Civil Rights Act of 1964, as amended, is to demonstrate that

the person was subjected to a tangible work action defined as “a significant hiring, firing,

failing to promote, reassignment with significantly different responsibilities, or a decision

causing a significant change in benefits.” Ellerth, 524 U.S. at 761, 118 S.Ct. at 2268.

Craig was not terminated from employment with the Russell County Board of

Education but rather remains in good standing with the body. She, however, was

constructively discharged from an opportunity with her employer that allowed her to earn

extra money driving for Ladonia Elementary School field trips.

She explained the process in her affidavit (Exhibit K):

“Under an informal system, for several years I was the person who made field trip

assignments. The transportation office would call me and tell me about upcoming trips

for Ladonia classes. I would take some trips and ask other drivers if they wanted other

trips. I tried to be fair and spread them around, but I just stopped taking them altogether

to avoid contact with Mr. Nacrelli. The amount we were paid for the trips varied,

depending on how far we had to go and how much time it took, but I think we got paid on

average about an extra $20.00 per trip. Just a few trips in a month would help me out.”

To be successful in a constructive discharge claim, a plaintiff must show that her

working conditions were “so difficult...that a reasonable person would have felt

compelled to resign.” Pipkins v. City of Temple Terrace Fla., 267 Fo. Ed 1197, 1201 (11th

Cir. 2001) as quoted in Walton v. Johnson & Johnson Services, Inc., No. 02-12520 (11th

Cir. 2003).

Craig has detailed two egregious incidents which involved his entering her bus

and proposing her while rubbing her legs around the time she quit taking the field trips.

She also has details incidents in which he grabbed his crotch and made crude remarks and

grabbed her buttocks and stood so close to him in a meeting that his crotch was just

inches from her face.

Transportation Supervisor Rudd was well aware that Craig stopped taking the

field trips. In his affidavit that is part of the Russell County Board of Education’s

evidentiary submission, Rudd states that, “...it was assumed that Ms. Craig quit taking

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extra-curricular trips because of personal family reasons and did not have the time. Ms.

Craig has had to deal with family members’ illness over the past years.”

Rudd also verified the informal arrangement under which Craig scheduled trips.

“...it is true that Mrs. Craig would inform me of extra-curricular trips at Ladonia

Elementary School and would also tell me which drivers wanted to take a particular trip.

Although the assignment is my responsibility, I would usually follow her suggestions.”

Craig lost money because of Nacrelli’s conduct. She was subjected to a

constructive discharge due to the egregious conduct of her supervisor. A jury may well

decide that it was reasonable that Craig felt compelled to resign.

STATE LAW CLAIMS

STANDARD OF REVIEW FOR SUMMARY JUDGMENT MOTIONS

IN THE STATE CASES

The standard for summary judgment under Rule 56, Ala.R.Civ.Proc., is

essentially the same as for the federal rule: “When reviewing a trial court's summary

judgment, this Court must determine whether there were any genuine issues of material

fact and whether the movant was entitled to a judgment as a matter of law. See Ex parte

Atmore Cmty. Hosp., 719 So.2d 1190, 1193 (Ala. 1998). The movant has the initial

burden of making a prima facie showing that there is no genuine issue of material fact; if

the movant makes that showing, the burden then shifts to the nonmovant to present

substantial evidence of each element of the claim challenged by the movant. Id.

Substantial evidence is "'evidence of such weight and quality that fair-minded persons in

the exercise of impartial judgment can reasonably infer the existence of the fact sought to

be proved.'" Lolley v. Charter Woods Hosp., Inc., 572 So.2d 1223, 1224 (Ala. 1990)

(quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.

1989)).

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ASSAULT & BATTERY BY DEFENDANT NACRELLI AGAINST

JEFFERS

The Alabama Supreme Court restated the standard of proof in cases involving

assault and battery in Harper v. Winston County and Sandra Wright, 892 So.2d 346 (Ala.

2004): The plaintiff in an action alleging assault and battery must prove "(1) that the

defendant touched the plaintiff; (2) that the defendant intended to touch the plaintiff; and

(3) that the touching was conducted in a harmful or offensive manner." Atmore Cmty.

Hosp., 719 So.2d at 1193. In Atmore Community Hospital, the plaintiff presented

evidence indicating that the defendant "touched her waist, rubbed against her when

passing her in the hall, poked her in the armpits near the breast area, and touched her

leg." 719 So.2d at 1194. The plaintiff also presented evidence indicating that "each of

these touchings was intentional, was conducted with sexual overtones, and was

unwelcome." Id. We held that these factual assertions constituted substantial evidence

that the defendant had committed a battery.”

“An actual injury to the body is not a necessary element of a civil assault and

battery. Ex parte International Bennett v. State, 57 Ala.App. 568, 571, 329 So.2d 627

(1976),” as quoted in Surrency v. McNally-Pittsburg Manufacturing Corp., 489 So.2d

1097 at 1104 (Ala. 1986).

Plaintiff Jeffers, in her affidavit (Exhibit A) and through corroborative testimony

herein, has listed at least three incidents of substantial, intentional assault and battery by

defendant Nacrelli, all such incidents having sexual overtones:

*At a pool party in July 2005, Nacrelli squeezed her buttocks on several

occasions.

*At the same party in July 2005, Nacrelli wrapped his legs around her in front of

his wife and Jeffers had to remove them.

*At Ladonia Elementary School in September 2005, Nacrelli picked Jeffers up

and bit her on the breast.

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Nacrelli explains his actions at the pool party by claiming that he was drunk.

(Exhibit B, p. 56) That is not a legal excuse recognized under the civil law. The argument

is akin to that of a drunk driver contending he was not liable for killing a pedestrian

because he was drunk. Regardless, Jeffers’ affidavit indicates that the unwanted touching

started early in the evening and, even if he did have too much to drink later, he was not

inebriated when the first touching began. (Exhibit A)

Nacrelli was at work at Ladonia Elementary School when the third offensive

touching occurred. He picked Jeffers up, rolled her toward him, and bit her on the breast.

(Exhibit A) A witness, Kelly Brantley Howard, saw Nacrelli pick Jeffers up. According

to Assistant Superintendent Lillian Baker, who conducted the investigation that led to

Nacrelli’s firing for sexual harassment, Ms. Howard saw Nacrelli pick up Jeffers but not

the actual biting. “She (Howard) said she turned her back when he picked her up because,

I guess, she didn’t want to see what was happening.” (Exhibit G, p. 124)

Nacrelli admitted to picking her up and stated that his lips “could have nipped at

her shirt...I went, ooh, you know, oh, crap, sorry, but, you know, that was it. As far as I

know, I didn’t remember, like I say, chomping down on her...” (Exhibit B, pp. 76-77)

Nacrelli admitted that the conduct was not appropriate for a principal. (Exhibit B, p. 77)

Jeffers stated that the biting was intentional and not accidental, noting that

Nacrelli immediately apologized for the act committed in the presence of a witness.

(Exhibit A)

In his brief in support of summary judgment, Nacrelli argues that Jeffers should

be barred from recovery because she failed to report the abuse for three months. The law

does not require immediate reporting, but she reported the buttocks squeezing the night it

happened and the breast biting within days of the incident.

Nacrelli also argues that Jeffers provoked Nacrelli to bite her breast by telling him

that he couldn’t pick her up. She denies telling him that (Exhibit A) but even if she had,

such would not amount to provocation to bite an intimate body part. Such dare, which

Jeffers denied, would have related to his picking her up, not biting her breast.

A jury could conclude, and indeed a jury of reasonable people should conclude

that Nacrelli committed an assault and battery against Jeffers. The acts of grabbing

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Jeffers’ buttocks, putting his legs around her when he was wearing a bathing suit, and

biting her breast, were intentional and egregious. Coupled with comments and other

conduct described herein, it is apparent the acts were done with sexual overtones.

Moreover, the acts were unwelcome. (Exhibit A) Thus, the legal standard quoted in

Harper was met.

ASSAULT & BATTERY BY DEFENDANT NACRELLI AGAINST CRAIG

The Alabama Supreme Court restated the standard of proof in cases involving

assault and battery in Harper v. Winston County and Sandra Wright, 892 So.2d 346 (Ala.

2004): The plaintiff in an action alleging assault and battery must prove "(1) that the

defendant touched the plaintiff; (2) that the defendant intended to touch the plaintiff; and

(3) that the touching was conducted in a harmful or offensive manner." Atmore Cmty.

Hosp., 719 So.2d at 1193. In Atmore Community Hospital, the plaintiff presented

evidence indicating that the defendant "touched her waist, rubbed against her when

passing her in the hall, poked her in the armpits near the breast area, and touched her

leg." 719 So.2d at 1194. The plaintiff also presented evidence indicating that "each of

these touchings was intentional, was conducted with sexual overtones, and was

unwelcome." Id. We held that these factual assertions constituted substantial evidence

that the defendant had committed a battery.”

“An actual injury to the body is not a necessary element of a civil assault and

battery. Ex parte International Bennett v. State, 57 Ala.App. 568, 571, 329 So.2d 627

(1976),” as quoted in Surrency v. McNally-Pittsburg Manufacturing Corp., 489 So.2d

1097 at 1104 (Ala. 1986).

In her affidavit (Exhibit K), Craig cites at least six offensive incidents of assault

and battery committed against her between 2002 and 2005. The statute of limitations for

the tort of assault and battery under law Alabama is six years, so the complaint was filed

well within the period. §6-2-34(1), Code of Alabama 1965.

The incidents, detailed above, of unwelcome touchings by Nacrelli of Craig

include (Exhibit K):

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*His coming on her bus in about 2002 at the Handcock Street bus stop in Ladonia

in and rubbing her legs and telling her how soft and nice her legs were.

*Upon the return to Ladonia Elementary that day, Nacrelli rubbed her hair and her

legs up toward the crotch area.

*A few weeks later, Nacrelli came on her bus at Ladonia Elementary to discipline

a student and when all students had exited, he started rubbing her neck and leg. Nacrelli

told Craig that she had nice breasts and would like to get her in bed and commented

about what good lovers Italian men are.

*In 2004, Nacrelli followed Craig and her nephew to their motorcycles parked in

front of Ladonia Elementary. He placed his arm around her and when she shrugged it off,

he squeezed her buttocks at the hand slid down her backside. This incident was witnessed

by her nephew, Garnett Lamar Booker, Jr. (Exhibit L) However, due to the volume of

sound of the motorcycles, Booker was unable to hear Nacrelli tell Craig that he would

like to ride with her and hold on by her breasts.

*Nacrelli stood so close to her that his leg touched her at a meeting of bus drivers

at Russell County Middle School near Seale, Alabama in August 2005. His crotch was

only a few inches from her face. Two other bus drivers, Shirley Baker and Dianne

McDaniel, noticed the unusual behavior. (Exhibits M & N)

*At a meeting at Ladonia on August 8, 2005, Nacrelli asked Craig to sit in a

certain seat for another bus drivers’ meeting and then proceeded to rub her shoulders

during the meeting, forcing her to take his hand off her.

These acts were intentional and were extremely stressful to Craig.

In her affidavit (Exhibit K), Craig detailed the stress she was placed under by Nacrelli’s

offensive conduct: “All Mr. Nacrelli’s improper conduct of a sexual nature toward me

was unwelcome. I never consented to any of it and told him I didn’t. I am happily

married and did not want Mr. Nacrelli messing with me. His conduct was disgusting to

me. It lowered my self esteem and caused me to be depressed. I even cut my hair after he

stroked my hair and told me how much he liked long hair. The entire matter made me

scared because I am just a bus driver and Mr. Nacrelli was a principal.”

A reasonable jury could conclude that Nacrelli committed assault and battery

against Craig, not only because of the six unwanted touchings, but because those batteries

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were coupled with the crude statements and propositions for sex. The evidence is clear

"(1) that the defendant touched the plaintiff; (2) that the defendant intended to touch the

plaintiff; and (3) that the touching was conducted in a harmful or offensive manner."

Atmore Cmty. Hosp., 719 So.2d at 1193.

TORT OF OUTRAGE COMMITTED BY NACRELLI AGAINST JEFFERS

Title VII of the 1964 Civil Rights Act does not allow a sexual harassment victim

to recover against an individual perpetrator. However, Alabama recognizes the tort of

outrage for egregious sexual harassment, such as that suffered by Jeffers and Craig.

“...this Court has recognized the tort of outrage in only three limited

circumstances: (1) wrongful conduct within the context of family burials; (2) an

insurance agent's coercing an insured into settling an insurance claim; and (3) egregious

sexual harassment. The Carraway entities also point out that in order to establish a

successful tort-of-outrage claim, a plaintiff must show that ‘the defendant's conduct

caused emotional distress so severe that no reasonable person could be expected to

endure it.’ Stabler v. City of Mobile, 844 So.2d 555, 560 (Ala. 2002).”

Nacrelli’s offensive conduct is detailed herein.

For years Nacrelli made crude statements and told off-color jokes to Jeffers. He

bragged about his sexual prowess and his Italian pedigree. He made a video of a female

teacher’s breasts that was accidentally shown to a school class. He repeatedly talked

about women’s anatomy, including their breasts and buttocks. He appeared naked in front

of Jeffers at a school party, where he pulled down the top and bottom of another teacher’s

two-piece swim suit and squeezed Jeffers and another teachers’ buttocks. He picked

Jeffers up and bit her breast at school. The list goes on. Jeffers was victimized 25 times or

more over a period of about six months starting in the spring of 2005. (Exhibit A)

Jeffers was under such stress by Nacrelli’s offensive acts that she expended every

sick and personal leave day available to avoid her supervisor. She explained how it

affected her in her affidavit (Exhibit A): “I considered Mr. Nacrelli’s many statements of

a sexual nature very offensive. I found his touching my buttocks and exposing himself to

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me extremely offensive, as I did his picking me up and biting me on the breast. I did not

consent to the conduct. It was embarrassing and humiliating to me. It made me feel less

than whole and affected my self esteem. Mr. Nacrelli knew that I did not consent to the

conduct, but it was all about control to him. He expected me and others to submit and not

complain because he was our supervisor...”

Nacrelli’s conduct so egregious as to meet the high standards of the law: The

conduct was (1) intentional (2) extreme and outrageous and (3) caused emotional distress

so severe that no reasonable person could be expected to endure it. Peterson v. BMI

Refractories, 132 F.3d 1405 (11th Cir. 1998)

Nacrelli’s conduct was outside the bounds of decency and a jury of reasonable

persons could and should find that Nacrelli committed the tort of outrage against Craig.

TORT OF OUTRAGE COMMITTED BY NACRELLI AGAINST CRAIG

Title VII of the 1964 Civil Rights Act does not allow a sexual harassment victim

to recover against an individual perpetrator. However, Alabama recognizes the tort of

outrage for egregious sexual harassment, such as that suffered by Jeffers and Craig.

“...this Court has recognized the tort of outrage in only three limited

circumstances: (1) wrongful conduct within the context of family burials; (2) an

insurance agent's coercing an insured into settling an insurance claim; and (3) egregious

sexual harassment. The Carraway entities also point out that in order to establish a

successful tort-of-outrage claim, a plaintiff must show that ‘the defendant's conduct

caused emotional distress so severe that no reasonable person could be expected to

endure it.’ Stabler v. City of Mobile, 844 So.2d 555, 560 (Ala. 2002).”

Nacrelli’s offensive conduct is detailed herein.

In her affidavit (Exhibit K), Craig notes that she was subjected to a constant

barrage of gestures, such as Nacrelli grabbing his penis, and off-color comments,

including propositions for sex. She notes at least six unwanted touchings by Nacrelli

(Exhibit K):

*Nacrelli’s coming on her bus in about 2002 at the Handcock Street bus stop in

Ladonia and rubbing her legs and telling her how soft and nice her legs were.

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39

*Upon the return to Ladonia Elementary that day, Nacrelli rubbed her hair and her

legs up toward the crotch area and propositioned her.

*A few weeks later, Nacrelli came on her bus Ladonia Elementary to discipline a

student and when all students had exited, he started rubbing her neck and leg. Nacrelli

told Craig that she had nice breasts and would like to get her in bed and commented

about what good lovers Italian men are.

*In 2004, Nacrelli followed Craig and her nephew to their motorcycles parked in

front of Ladonia Elementary. He placed his arm around her and when she shrugged it off,

he squeezed her buttocks at the hand slid down her backside. This incident was witnessed

by her nephew, Garnett Lamar Booker, Jr. (Exhibit L) Nacrelli told Craig that he would

like to ride with her and hold on by her breasts.

*Nacrelli stood so close to her that his leg touched her at a meeting of bus drivers

at Russell County Middle School near Seale, Alabama in August 2005. His crotch was

only a few inches from her face. Two other bus drivers, Shirley Baker and Dianne

McDaniel noticed the unusual behavior. (Exhibits M & N)

*At a meeting at Ladonia on August 8, 2005, Nacrelli asked Craig to sit in a

certain seat for another bus drivers’ meeting and then proceeded to rub her shoulders

during the meeting, forcing her to take his hand off her.

Craig’s affidavit (Exhibit K) states that Nacrelli was guilty of two dozen or more

offensive comments and acts over a three year period beginning in 2002, including the

six incidents of physical touchings.

In her affidavit (Exhibit K), Craig detailed the stress she was placed under by

Nacrelli’s offensive conduct: “All Mr. Nacrelli’s improper conduct of a sexual nature

toward me was unwelcome. I never consented to any of it and told him I didn’t. I am

happily married and did not want Mr. Nacrelli messing with me. His conduct was

disgusting to me. It lowered my self esteem and caused me to be depressed. I even cut my

hair after he stroked my hair and told me how much he liked long hair. The entire matter

made me scared because I am just a bus driver and Mr. Nacrelli was a principal.”

Nacrelli’s conduct was outside the bounds of decency and a jury of reasonable

persons could and should find that Nacrelli committed the tort of outrage against Craig.

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SUMMARY & REQUESTED ORDER

Both plaintiffs Craig and Jeffers were subjected to horrendous conduct of a

sexually insulting manner by their supervisor, Principal Charles Nacrelli. For reasons

stated herein, the Faragher/Ellerth affirmative defense fails and defendant Russell

County Board of Education is vicariously liable for the egregious actions of its

supervisor, Nacrelli. In addition, all legal standards have been met and Nacrelli is liable

to Jeffers and Craig for the torts of assault and battery and outrage.

Plaintiffs respectfully ask the Court to enter an order denying defendants’ motions

for summary judgment on all counts detailed herein and enter an Order setting the case

for trial.

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CERTIFICATE OF SERVICE

I hereby certify that on 10th day of January, 2008, I have electronically filed the

foregoing with the Clerk of Court using the CM/ECF system which will send notification

of such filing to the following:

Sydney S. Smith, Esq.

Attorney for defendant Russell Co. Board of Education

Ssmith4843@aol.com

Matthew C. Williams, Esq.

Attorney for defendant Charles Nacrelli

Matt@esw-law.com

/s/W. Don Eddins (ASB-1424-S65W)

Attorney for plaintiffs

337 E. Magnolia Avenue

Auburn, AL 36830

(334) 821-9981

Facsimile (334) 826-7700

doneddins@charter.net

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