IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

ELIZABETH LYNNE HUTCHINSON, )

)

Plaintiffs, )

) CIVIL ACTION NO:

vs. ) CV-06-00700-WHA

) JURY DEMAND

)

PHENIX CITY BOARD OF EDUCATION, )

LARRY E. DICHIARA, officially as )

as Superintendent of the Phenix City Schools )

)

)

Defendants. )

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT PHENIX CITY BOARD

OF EDUCATION AND LARRY DICHIARA’S MOTION FOR SUMMARY JUDGMENT

COMES NOW, Plaintiff, Elizabeth Lynne Hutchinson, through the undersigned counsel,

and responds to Defendants’ Phenix City Board of Education and Dr. Larry E. DiChiara’s Motions

for Summary Judgment.

I. INTRODUCTION AND SUMMARY OF ARGUMENT

The Plaintiff,ElizabethLynneHutchinson,(hereinafter “Plaintiff” or “Hutchinson”) contends

that the Defendants, the Phenix City Board of Education (hereinafter “the Board”) and Larry E.

DiChiara (hereinafter “DiChiara”), officially as Superintendent of the Phenix City Schools,

terminated her employment because of her race and in retaliation against her in violation of Title

VII Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., as amended by the Civil

Rights Act of 1991, 42 U.S.C. §1981a (hereinafter “Title VII”); 42 U.S.C. § 1981 (hereinafter “§

1981"); and the Fourteenth Amendment to the Constitution of the United States. Plaintiff asserts her

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claims for relief for the defendants'violations of Title VII, § 1981 and the Fourteenth Amendment

through 42 U.S.C. § 1983 (hereinafter "§ 1983").

Plaintiff is a white female who worked with all black co-workers in a predominantly black

school and predominantly black neighborhood. Plaintiff suffered a great deal of racial harassment

by a black co-worker, BettyCliatt. Plaintiff made numerous complaints about the racial harassment

to her supervisors, including Brenda Densel, the Child Nutrition Program Manager. Furthermore,

it is undisputed that Plaintiff went to make a formal complaint of racial harassment and

discrimination to hersupervisors(PennyPassmore, theChild Nutrition ProgramSupervisor, and Jeff

Adams, the Personnel Director) on November 9, 2004. These same decision-makers, along with

Densel, her immediate supervisor, decided to terminate Plaintiff on November 10, 2004, one day

after her formal complaint. It is undisputed that Densel and Passmore (with support from Adams

and Sparks) made the decision to terminate Plaintiff the day after her formal complaint of

discrimination and harassment.(See Doc. #31, p. 9).

The racial harassment continued until the end of Plaintiff’s employment and although the

formal decision to terminate (or non-renew) Plaintiff was not finalized until the end of the school

year in May 2005, the actual decision was made one day after her formal complaint. The fact that

none of the Defendants or any agent of Defendants conducted any independent investigation into

Plaintiff’s complaints coupled with the fact that the decision-makers and supervisors have given

inconsistent reasons for her termination is sufficient evidence to establish pretext. There is a clear

dispute as the testimony given by Defendants as to the real reason Plaintiff was terminated.

Simply put, this case is not a proper case for summary judgment. The undisputed facts

indicate that Plaintiff hasstated a proper claim for race discrimination and retaliation. Furthermore,

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there are substantial allegations with factual support, which may or not be in dispute, that have

created a genuine issue of material fact that require submission to the jury. Therefore, the

Defendants Motions for Summary Judgment should be denied.

II. SUMMARY OF FACTS

A. NARRATIVE STATEMENT OF UNDISPUTED FACTS

1. Defendant’s Narrative Summary of Undisputed Facts

Plaintiff herebyagrees with Defendants’ NarrativeSummaryofUndisputed Facts Paragraphs

1-12; 14-16; 18-19. (See Doc. 31; paragraphs 1-19). Plaintiff disputes the following Paragraphs:

13. Plaintiff attempted to file a written complaint during her formal complaint to Mrs.

Passmore and Mr. Adams, however Plaintiff was not allowed to file a written

complaint because Mr. Adamsstopped the meeting and told hershe needed to get an

attorney. (Exh. I).

17. Plaintiff has filed an EEOC charge and a Federal Lawsuit alleging that her nonrenewal violated Federal and Constitutional laws.

2. Additional Undisputed Facts

i. Background

Hutchinson was a good employee who did her job without performance problems.

(Plaintiff’sExh.B; PennyPassmore Depo. pp. 42:5-18)(Plaintiff’s Exh.C;Brenda Densel Depo. pp.

22:3-11). On November 9, 2004, Hutchinson cut her hand when a co-worker attempted to grab

something from her. Brenda Densel, the South Girard CNP Supervisor, took Hutchinson downtown

to see the school nurse. (Densel Depo. pp. 27:1 - 28:18). Densel and Hutchinson then went to talk

to Penny Passmore, the Child Nutrition Program Supervisor, whose office was located downtown

at the auxiliary building next to the Phenix City Board of Education. (Densel Depo. pp. 28:19 -

29:15). Hutchinson was upset and crying. (Densel Depo. pp. 2-11).

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ii. Plaintiff’s Formal Complaint of Harassment and Discrimination.

Later that day, Hutchinson and her husband, Will McCart, went to see Passmore again to

make a formal complaint of harassment and discrimination. During this meeting, McCart stated:

“She [Hutchinson] needsto fill out a formal complaint about the hostile treatmentshe’s been getting

over there for the last couple of months.” (Plaintiff’s Exh.I; Taped Transcript of Formal Complaint).

Passmore remembers him making this statement. (Passmore Depo. pp. 88:16 – 89:3). They asked

to speak to Jeff Adams and the Superintendent. McCart then told Jeff Adams, the Principal of South

Girard, when Adams walked into the meeting: “She [Hutchinson] wants to file a formal complaint

about her treatment – or mistreatment should I say, her work environment.” (Exh. I).

Adams then states: “You’ve indicated there’s some racial hostility.” (Id.) Hutchinson

responded by stating: “That’s what I feel like.” Mr. McCart then asked Passmore if she was aware

of it and Passmore stated: “I don’t see it when I’m over there. Ijust know thatshe has mentioned

it -- she has mentioned it.” (Id.)

Adams told Hutchinson that in order to set forth a “hostile environment [claim], you need

specifics, okay.” (Id.) Hutchinson told them that she had previously told the supervisor (Ms.

Densel) about the problemsthat were going on. Mr. McCart explained that when she complains, the

other employees get made with her. (Id.) Adams then told her: “well, I mean you just have to turn

a deaf ear to it... just ignore them.” (Id.)

McCart asked Adams: “So you’re not going to do anything about this today?” Adams

responds by asking what her complaint is and McCart again states: “About the treatment and abuse

thatshe’s heard from the other ladies over there. They’re well aware of what’s been going on.” (Id.)

Hutchinson also discussed the possibility of transferring and Passmore had told her in an

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earlier meeting thatshe could be transferred or juststick it out and next year may get better.(Id.) The

next day [November 10, 2004], Passmore and Densel made the decision to non-renew Plaintiff. (See

Doc. #31, p. 9).

iii. Plaintiff’s Replacement

Plaintiff was replaced by a black female, Mary Carter. (White Depo. pp. 31:13-

22)(Plaintiff’s Exh. V; Defendant’s Responses to Defendant’s Discovery)(improperly identified as

Mary Walker).

iv. Phenix City Board of Education Policies and Procedures

There is nothing in the Board’s policies or procedures regarding racial discrimination or

racial harassment or retaliation of an employee. (Plaintiff’s Exh. Q: Phenix CityBd.of Educ. Sexual

Harassment Policy)(DiChiara Depo. pp. 41:2-14). The Board’s Complaint and Grievance Policy

states “the superintendent and/or his representatives shall investigate all complaints, which may be

brought against any individual school in the school district, in regard to any alleged discriminatory

action for appropriate treatment by the Board.” (Plaintiff’s Exh. R; Phenix City Bd. of Educ.

Complaint Procedure Policy). If a complaint is brought to an employee of the Board, the Board has

a responsibility to investigate that complaint. (Id.)(DiChiara Depo. pp.42:21 - 43:8).

Dr. DiChiara has had no training in regardsto racial harassment. (DiChiara Depo. pp. 107:8-

12). He has never done anything to inform his subordinates about racial harassment policies and

procedures. (DiChiara Depo. pp. 108:22 – 109:3).

B. NARRATIVE STATEMENT OF ADDITIONAL FACTS

Plaintiff also sets forth the following facts which may or may not be in dispute but are

pertinent to Plaintiff’s case and must be taken in the light most favorable to Plaintiff for purposes

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of this motion:

1. Plaintiff’s Claims of Harassment, Discrimination and Retaliation

Betty Cliatt, a black co-worker, constantly told Plaintiff she was going to send her to the

black schoolso she could learn to do thingsthe black way. (Plaintiff’s Exh. A; Elizabeth Hutchinson

Depo. pp. 68:21 – 69:4; 73:1-10). Plaintiff reported this to Beverly Walker, her former supervisor.

(Hutchinson Depo. pp. 73:11-13). Cliatt also told Plaintiff “white people are stupid.” (Hutchinson

Depo. pp. 73:3-13). Plaintiff reported this to both Walker and Densel, her supervisors.(Hutchinson

Depo. pp. 73:3-13). Plaintiff explained to Densel when Densel became the new supervisor for 2004-

2005 that she had problems with Cliatt and Densel told her that things were going to be different.

(Hutchinson Depo. pp.75:9 - 76:3-11).

Plaintiff told Densel about race issues and that some of the employees didn’t want to work

as hard as the other employees or follow directions. (Hutchinson Depo. pp. 76:15 – 78:4). She told

Densel how Cliatt liked to run her mouth and criticize white people and say that white people are

nothing but trailer trash. (Hutchinson Depo. pp. 77: 17- 78:4). Over the course of her employment

Cliatt made numerous complaints to Plaintiff including, but not limited to the following:

(1) Cliatt said she was going to send me to the black school so I could learn to do

things the black way; (2) “White people are so stupid”; (3) “White people can’t

cook”; (4) “White people don’t know how to do anything”; (5) “White people are

always putting the blame on black people because they are black”; (6) “It’sthe white

people doing the crimes”; (7) “What people are sorry”; (8) “All white people are

white trailer trash”; (9) “White people take things that don’t belong to them”; (10)

“Whites are nothing but trailer trash”; (11) “Ain’t no white trailer trash going to be

putting their face over my food”; (12) During the Michael Jackson trial Cliatt stated

that it was all about some white trash trying to get Jackson’s money; (13) White

people are just ugly, the way they look as human beings; (14) Why is Brenda Densel

sending her white trailer trash daughter to check on us, she has no authority over us;

(15) Cliatt would criticize Brenda Densel saying things like “this white trailer trash

don’t know whatshe’s doing”; (16) White trailer trash abuses black people; (17) It’s

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actually white people doing the crimes and blaming it on the black people; (18)

White people are up to no good; (19) White trailer trash has to send her white trailer

trash to check up on us.

(Plaintiff’s Exh. W; Plaintiff’s Responses to Defendant’s Interrogatories #1).

Plaintiff explained to Densel that Cliatt was treated her this way because she was the only

white employee. (Hutchinson Depo. pp. 81:7-15)

Additionally, Cliatt made remarks to her such as “When you walk past me you say excuse

me.” However, she didn’t do this to the black employees. Cliatt did not want to, and on occasion,

would refuse to share the sink or work area with her, however, she would share with the other black

girls. When Plaintiff was assigned to wash pans, Cliatt would not wash any of the pansthat Plaintiff

gave to her and would only wash pans if she received them from other girls. Cliatt often falsely

accused Plaintiff of taking her food. Cliatt would go out of her way to interfere with Plaintiff doing

her job and would try to make things harder on Plaintiff. Cliatt did not treat black co-workers in a

similar manner. (Exh. W).

Plaintiff observed Cliatt providing meals to black school children who were over the $5.00

credit limit for unpaid food and denying meals to white children who were likewise over the limit.

Plaintiff also observed Cliatt Betty handing certain food to the black children, but would not do the

same for the white children. (Exh. W).

Cliatt would deliberately make a mess on the floor when Plaintiff was assigned to mop. She

would pour food juice out of the pots onto the floor, look at Plaintiff and then laugh and tell her that

she had missed a spot. A few times when Cliatt was mopping and Plaintiff was washing pans, she

came over to where she was working and took the wet mop and purposely swung it towards

Plaintiff’s feet and legs, soaking her pants and shoes. Cliatt then looked at Plaintiff and laughed.

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1Of course, at this time, Densel and Passmore had already made the decision to non-renew Plaintiff.

8

(Exh. W).

On November 9, 2004, a co-worker at South Girard cut Plainitff’s finger by snatching tongs

from her hand. Plaintiff went to Densel’s office to get a bandage. Densel took her to Passmore’s

office. Densel told Plaintiff: “Something needs to be done, I don’t know how to handle the girls. I

can’t take any more of this. I’ve got to have some help with the way they have been doing. I’ve

never had to deal with a situation like this. Its gone on long enough and now I’ve got a good reason

to take you over to the office and getsome help. I just don’t know what to do, maybe Mrs. Passmore

and Mr. Adams do.” (Exh. W).

Later that day, Plaintiff and her husband went to talk with Passmore and Adams about the

harassment she had been suffering. Plaintiff’s husband taped the conversation. (Exh. I). The next

day, November 10, 2004 when Plaintiff went back to work, Densel acted angrywith her because they

had gone to Passmore and Adams. From then on it seemed as if Densel was unwilling to help

Plaintiff.

1

(Exh. W).

After her complaints, the harassment of Plaintiff continued and in fact things got worse.

Other substitute workers did not want to come back to work in the kitchen at South Girard. Then

Densel went out on some kind of medical leave and began sending her daughter to the South Girard

to check up on theCNP workers. Cliatt didn’t like this. She would make statements described above

about “White trailer trash has to send her white trailer trash to check up on us”. (Exh. W).

The harassment continued up until Plaintiff was notified of her termination. The supervisors

and managers knew what was going on and refused to put an end to the harassment. Instead of

dealing with the problem, they decided to terminate her for complaining about the harassment.

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On May 13, 2005, Adams came to the school and called Plaintiff to report to the office.

When she got to the office, Adams and Joshua Laney, the Assistant Principal, were present and

Adams told Plaintiff she would not have a job after this year with the school system. (Exh. W).

Plaintiff asked for a letter of recommendation from Paula Pritchett, but Densel told Pritchett

no. Plaintiff wrote a letter to Dr. DiChiara asking for copies of her personnel file and her evaluations

that were done by her manager, Densel, at South Girard in the cafeteria. Plaintiff did not receive her

evaluation from Densel, but did receive her evaluation from Beverly Walker, her former manager.

(Exh. W).

Afterthe school year ended, Plaintiff went to DiChiara to complain about hertermination and

see what could be done. However, neither DiChiara or the Board would give Plaintiff her job back.

(Exh. W).

2. A Non-Renewal is Effectively a Termination.

A non-renewal effectively acts as a termination of the employee. (Passmore Depo. pp. 22:1-

17)(Plaintiff’sExh. N; HutchinsonTerminationLetter). The decision to non-renew an employee can

be made earlier in the school year, although it may not become effective until the end of the school

year. (Passmore Depo. pp. 31: 23 – 32:7).

3. Ms. Hutchinson was a Good Employee without Performance Problems.

Hutchinsonwas a good employee who did herjob without performance problems. (Passmore

Depo. pp. 42:5-18)(Densel Depo. pp. 22:3-11)(Plaintiff’s Exh. K; Hutchinson Performance

Evaluation 2004)(Plaintiff’s Exh. M; Hutchinson Performance Evaluation 2005).

4. Ms. Hutchinson and her Husband made a Formal Complaint of Racial

Discrimination and Harassment on November 9, 2004.

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During the November 10, 2004 meeting with Passmore and Adams, both Ms. Passmore and

Ms. Adams acknowledge that Ms. Hutchinson was making a complaint of racial discrimination and

racial harassment. (Exh.I). Passmore remembers discussing the possibility of Passmore transferring

and acknowledged that it was unfair to Hutchinson, but the reality was she could not transfer all of

the other co-workers . (Passmore Depo. pp. 59:18 - 60:23)(Exh. I). The internal complaints made

by Ms. Hutchinson clearly qualify as a complaint. (DiChira Depo. pp. 74:3 – 75:2)(Exh. R; Board

Complaint Procedures).

5. All of the Actual Decision-Makers Had Knowledge of the Complaints of

Racial Discrimination and Harassment.

Passmore was aware that Hutchinson made a complaint that other employees didn’t like her.

(Passmore Depo. pp. 56:9 - 57:4). Passmore was aware that Hutchinson made a complaint about

race. (Passmore Depo. pp. 58:10-12); 65:5 – 66:8)(90:5-10). Passmore remembers comments about

“[w]hat are [they] going to do about [Hutchinson] being treated – the hostile treatment she was

receiving.” (Passmore Depo. pp. 63:10 – 64:8). Passmore took it to mean that “it was a lot of

blacks” that were being “one-sided” toward Hutchinson. (Passmore Depo. pp. 64:9-20; 65:9-15).

Jeff Adams, the Personnel Director (now deceased), was also called into this meeting.

(Passmore Depo. pp. 69:8-11). Passmore went to get Adams during the meeting and told him while

they walked back that there were some allegations of racial activity. (Passmore Depo. pp. 96:8-20).

Passmore and Adams were both present in the formal complaint meeting and Densel discussed the

meeting with them. (Exh. I).

6. The Next Day the Decision-Makers Decided to Terminate Plaintiff

a. Decision to Terminate Plaintiff

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The next morning Passmore went to talk to Densel and discussed the meeting from the day

prior and discussed how Hutchinson was coming up for tenure. (Passmore Depo. pp. 79:14-

20)(Densel Depo. pp. 8:20 - 9:1; 31:6 – 32:5; pp. 51:10-18). Passmore informed Densel that

Hutchinson and her husband had come by and made a complaint about some problems that were

going on with other employees. (Densel Depo. pp. 31:18-23). Densel had never met Mr. McCart

and based everything about her decision to non-renew Hutchinson on what was told to her by Ms.

Passmore. (Densel Depo. pp. 33:6-12). Although Passmore acknowledges that regardless of the

merits of an employee complaint, the complaint should be investigated, she did not investigate

Hutchinson’s complaint because the decision was made to non-renew her the next day. (Passmore

Depo. pp. 92:23 – 93:21; 96:21 -- 97:16).

Passmore and Densel then went to talk to Reginald Sparks, the Principal of South Girard, on

November 10, 2004. (Passmore Depo. pp. 82:6-12)(Densel Depo. pp. 34:3-12; 351-18). Theywent

to Sparks to make him aware of their decision. (Passmore Depo. pp. 84:13-21). According to

Densel, this meeting was about the complaints Hutchinson and McCart had made the day before.

(Densel Depo. pp. 38:8-12).

During this conversation, Densel told Sparks that “I’m going to recommend that Ms.

Hutchinson be nonrenewed for the next school year.” Sparks and Ms. Passmore both agreed with

Densel about the nonrenewal. (Densel Depo. pp. 46:3-23). During this meeting on November 10,

2004, the decision was made to non-renew Hutchinson’s contract. (Passmore Depo. pp. 52:8-12;

83:3-8)(Doc. #21). Densel and Passmore knew from this date on that Hutchinson was going to be

nonrenewed because the decision had already been made. (Densel Depo. pp. 48:9 - 49:5).

b. Mr. Sparks Has Given Inconsistent Testimony Regarding the

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2

If Sparks would have conducted his own independent investigation he may have discovered that Plaintiff

had made an internal complaint of harassment and may have attempted to correct the situation prior to terminated

her. However, Sparks, like Dr. DiChiara and the Board, merely rubber-stamped the decision based on her “alleged

performance problems”, although Densel and Ms. Passmore both admit that Hutchinson was a good employee.

12

Decision to Non-Renew Plaintiff.

Passmore testified she told Sparks about what took place in the meeting with Hutchinson and

McCart. However, according to Sparks, the meeting he had with Densel and Passmore was not

about McCart, rather it was about how Hutchinson was not a team player and was having

performance problems and problems working with the other employees. Sparks, who was also a

decision-maker or recommender in the chain of command, testified that when Passmore and Densel

came to talk with him about non-renewing Ms. Hutchinson they did not discuss with him the

meeting Hutchinson and McCart had with Passmore and Adams. (Sparks Depo. pp. 23:4 - 25:2).

Sparks does not recall discussing McCart. (Sparks Depo. pp. 31:1-3).

Sparksrecallsthat Passmore and Denselrecommended the decision to non-renewHutchinson

because Hutchinson not being “flexible” or having the ability to work as a team. (Sparks Depo. pp.

29:8:- 30:10). Sparkstestified that Passmore’s recommendation was because of teamwork and

poor performance problems, not because of McCart or any safety issues. (Sparks Depo. pp.

29:8 - 31:3; 52:23 -- 53:9).

Sparks did not investigate anything about Ms. Hutchinson’s employment.

2 He did not

interview or discuss the situation with Hutchinson or conduct any other independent investigation.

(Sparks Depo. pp. 43:22 - 45:2). Any recommendation that Mr. Sparks made regarding Ms.

Hutchinson’s non-renewal was based on what Ms. Densel andMs. Passmore told him.(Sparks Depo.

pp. 47:12-16).

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3A plaintiff survives summary judgment “simply by presenting evidence sufficient to demonstrate a

genuine issue of material fact as to the truth or falsity of the employer's legitimate nondiscriminatory reasons.”

Evans v. McClain of Georgia, Inc., 131 F.3d 957, 965 (11

th Cir. 1997).

4

Plaintiff notes that Mr. McCart did nothing that could be construed as violent during any meeting.

Passmore understood that McCart was upset because he wife got hurt that day. (Passmore Depo. pp. 76:19-22).

Ms. Densel had never met Mr. McCart, therefore based her knowledge on what Passmore told her about McCart.

(Passmore Depo. pp. 83:15 -- 84:2). And Densel made her decision on what Passmore told her. (Passmore Depo.

pp. 84:3-16). Furthermore, when Mr. McCart and Ms. Hutchinson met with Dr. DiChiara to discuss the

termination, Dr. DiChiara understood that Mr. McCart was upset about his wife being cut and stated that the

meeting was “cordial.”

(DiChiara Depo. pp. 64:19 – 65:3).

13

c. Plaintiff was not informed of the decision until the end of the school

year.

Ms. Hutchinson was not informed she would be non-renewed until the end ofthe school year.

(Plaintiff’s Exh. N; Termination Letter 2005; Plaintiff’s Exh. O; Hutchinson Non-Renewal 2005).

She was informed in a meeting with Joshua Laney and Jeff Adams. Hutchinson asked why she was

being terminated, but Adams would not give her a reason. (Josh Laney Depo. pp. 19:12 - 20:7).

7. Defendant has given different, inconsistent and untrustworthy reasons for

Plaintiff’s termination.

3

a. One reason given for wanting to nonrenew Ms. Hutcinson was

because ofsafety reasonsregarding Mr. McCart based on what Ms. Passmore told Ms. Densel about

the meeting.

4

(Densel Depo. pp. 47:1-9). Strangely, Densel agreed with Passmore despite the fact

that she had never met Mr. McCart. (Densel Depo.. Pp. 47:1-9).

b. After Plaintiff filed an EEOC Charge, the Defendants’stated another

reason in the EEOC position statement:

“Charging party was not terminated for poor work performance. Instead, reasonsfor

her termination were that she complained constantly to hersupervisor, and when the

supervisor attempted to have charging party and the alleged wrong-doer meet

together with the supervisor, charging party always refused to do so.”

(Plaintiff’s Exh. U: EEOC Position Statement)(White Depo. pp. 37:20 – 38:9). Defendant fails to

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5Of course, if the Board or DiChiara would have discussed the issues with Sparks they may have

discovered the inconsistent reasons these decision-makers have given for Plaintiff’s termination and may have

conducted further investigation.

14

mention Mr. McCart being potentially violent or a safety concern and clearly offers inconsistent

testimony than Mr. Sparks, Ms. Densel and Ms. Passmore.

c. Reginald Sparks based his decision to terminate Plaintiff because of

because of poor teamwork and poor performance problems, not because of Mr. McCart. (Sparks

Depo. pp. 29:8 - 31:3; 52:23 -- 53:9).

8. Neither the Phenix City Board of Education nor Dr. Larry DiChiara

Conducted any Internal Investigation regarding Plaintiff’s Complaints. Both

parties Rubber-Stamped the decision of the real decision-makers.

The Board does not have a specific policy regarding race discrimination or racial harassment

or a retaliation policy (White Depo. pp. 25:11 - 26:2). The Board believes that the superintendent

and other representatives under the superintendent should investigate all complaints that are made

to them. (White Depo. pp. 28:1-6). Furthermore, the employees of the Board should look into all

complaints,regardless of whetherthey believe themerits ofthe complaints. (White Depo. pp. 28:15-

23). However, the Board did not conduct any independent investigation of Ms. Hutchinson’s

complaints. (White Depo. pp. 24:9-12).

No one from the Board came to talk to Sparks about the decision to non-renew Ms.

Hutchinson.

5

(Sparks Depo. pp. 42:16-18). No one from the Board went to Passmore to discuss

Hutchinson. (Passmore Depo. pp. 87:1-4). Dr. Dichiara did not discuss Hutchinson with Passmore

until after the decision had been made. (Passmore Depo. pp. 87:11-13). Although Paula Prittchett

was the Assistant Manager of CNP at South Girard and worked closely with Hutchinson and was

at the meeting when Passmore and Densel discussed Hutchinson and McCart’s complaints, none of

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6Although Dr. DiChiara may have talked to Ms. Passmore about the decision to terminate Ms. Hutchinson,

he only did so after Ms. Hutchinson and Ms. McCart came to complain to him about her non-renewal. This was

after the final decision had been made and after Dr. DiChiara made his recommendation to the Board. (DiChira

Depo. pp. 60:5-14).

15

the decision-makers made any attempts to ask Pritchett anything about Hutchinson’s employment.

(Plaintiff’s Exh. F; Paula Pritchett Depo. pp. 19:2 – 21:22; 29:1-16).

Dr. DiChiara never went to discuss Hutchinson with Sparks. (Sparks Depo. pp. 42:13-15).

At the time of the non-renewal, DiChiara did nothing to find out why Hutchinson was being nonrenewed. (DiChiara Depo. pp. 48:21 – 49:1). Effectively, DiChiara and the Board rubber-stamped

the decision without any review of the facts.

Dr. DiChiara makesthe final recommendationsto the Board. (DiChiara Depo. pp. 25:6-21).

Dr. DiChiara relied on the recommendation of the Personnel Director, who was Jeff Adams at the

relevant time. (DiChiara Depo. pp. 25:22 -26:1). Dr. DiChiara’s decision was based solely on Mr.

Adams recommendation. (DiChiara Depo. pp. 49:5-10).

The Phenix CityBoard of Education relied on Dr. DiChiara’srecommendation to nonrenew

Ms. Hutchinson’s contract. (Plaintiff’s Exh. E; Lori White Depo. pp. 24:1-4). The Board is aware

that neither Dr. Dichiara nor Mr. Adams undertook any independent investigations into Ms.

Hutchinson’s complaints. (White Depo. pp. 29:17 - 30:14).

6

Hutchinson and McCart made another complaint to Dr. DiChiara after she was informed of

her termination and after the board and Dr. DiChiara had made their final decision. When Dr.

DiChiara met with Ms. Hutchinson and Mr. McCart, the conversation was “for the most part, it was

cordial.” (DiChiara Depo. pp. 64:19 – 65:3). When Dr. DiChiara spoke with Ms. Passmore, he

acknowledged that there appeared to be some friction between Ms. Hutchinson and some ofthe other

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16

employees. (DiChiara Depo. pp. 53:6 - 54:21)(pp. 60:19 -- 61:7)(“the safety issues, and the general

junk that was happening between the employees.”) Sparksrecallssitting in on one meeting with Ms.

Hutchinson and other employees discussing working together. (Reginald Sparks Depo. pp. 19:15

– 20:3).

9. General Concerns about Racial Issues at South Girard Middle School.

Previously, there had been concerns about racial issues at South Girard, including the fact

that grade reconfiguration may lead to South Girard becoming a majority black school. (White

Depo. pp. 43:6 - 45:16). Furthermore, there are people who are concerned because the location of

South Girard isin a predominantly black neighborhood. (White Depo. pp. 45:17 - 46:7). The school

is in a ninety-eight percent black neighborhood. (DiChiara Depo. pp. 103:9-12). There had been

issues concerning race at South Girard that were public knowledge. (Plaintiff’s Exh. S; Newspaper

Article; Re-segregation Fears)(Plaintiffs’ Exh. T; Newspaper Article; South Girard Racial Issues).

II. STANDARD OF REVIEW

A. SUMMARY JUDGMENT STANDARD

The basic issue before the court on a motion for summary judgment is whether the evidence

presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law. The moving party has the burden of showing the absence

of a genuine issue as to any material fact, and in deciding whether the movant has met this burden

the court must view the movant’s evidence and all factual inferences arising from it in the light most

favorable to the nonmoving party. If reasonable minds could differ on the inferences arising form

undisputed facts, then a court should deny summary judgment.

"As the moving party, [the defendant] has the burden of showing the absence of a genuine

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7

Federal Courts are consistent in requiring that parties opposing summary judgment shall be given a

meaningful opportunity to rebut all grounds and all evidence advanced in support of a motion for summary

judgment. See Malhotra v. Cotter & Co., 885 F.2d 1305, 1310 (7th Cir. 1989)("When a party moves for

summary judgment on ground A, his opponent is not required to respond on ground B -- a ground the movant

might have presented but did not.")(emphasis added); see also, John Deere Co. v. American National Bank, 809

F.2d 1190 (5th Cir. 1987)(reversing granting of summary judgment on ground not advanced by moving party since

non-moving party did not have opportunity to respond.)

17

issue of material fact, and for these purposes the material it lodged must be viewed in the light most

favorable to the opposing party." Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); see also

Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986); Matsushita Electric Industries Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986); Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 918

(11th Cir. 1993). The district court cannot weigh conflicting evidence or make credibility

determinations; instead, "'the evidence of the non-movant is to be believed, and all justifiable

inferences are to be drawn in his favor.'" Hairston, 9 F.3d at 919 (quoting Anderson, 477 U.S. at

255).

III. ARGUMENT

A. PLAINTIFF HAS MET HER PRIMA FACIE CASE OF RACE

DISCRIMINATION IN VIOLATION OF TITLE VII, § 1981 AND THE

EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT

Plaintiff notes that Defendant does not substantively address the Plaintiffs claims for race

discrimination other than addressing the legal aspects of Monell v. Department of Social Services

of City of New York, 436 U.S. 658 , 98 S.Ct. 2018 (1978) and the hostile work environment claims.

Plaintiff will address the legal analysis more fully below, but states that Plaintiff does not have to

rebut the factual argument and her claims should survive summary judgment as Defendant does not

address the factual elements of Plaintiff’s race discrimination claims.

7

Furthermore, Plaintiffs claims of race discrimination are substantially similar to the

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8

The analytical framework and proof requirements are the same for plaintiff’s § 1981 and Title VII claims,

so the court does not address them separately. Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11

th Cir.

1998); Howard v. BP Oil Co., 32 F.3d 520, 524 n. 2 (11

th Cir. 1994).

9

In reverse discrimination suits, plaintiffs must establish a McDonnell Douglas prima facie case. The test

requires a reverse discrimination plaintiff to prove: (1) that she belongs to a class (2) that she was qualified for the

job (3) that he was rejected for the job or terminated; and (4) that the job was filled by a minority group member or

a woman. Wilson v. Bailey, 934 F.2d 301, 302 (11

th Cir. 1991).

18

retaliation claims and the equal protection claims which are also addressed more fully below and

should be analyzed by taking into account the arguments of retaliation and pretext addressed below.

1. TITLE VII AND § 1981

8

As part of Plaintiff’s prima facie case on her race discrimination claim, she must show that

"[she] is a member of a protected class, that [she] was qualified for [her] position, that [she] was

terminated and that [she] was replaced by someone outside [her] protected class." See Hawkins v.

Ceco Coporation, 883 F.2d 977, 982 (11th Cir. 1989). It is undisputed that Plaintiff has met a prima

facie case of discrimination. She is a white employee

9 who was qualified for her position (i.e.

testimony indicates she was a good employee and received favorable performance evaluations), she

was terminated and replaced by a black employee.

The initial burden is initially on the plaintiff to show a prima facie case of discrimination.

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Dept. of Community Affairs v.

Burdine, 450 U.S. 248 (1981). Upon this showing, the burden of production shifts to the employer

to articulate legitimate, nondiscriminatory reasons for the employment action taken. Burdine, 450

U.S., at 258. If the defendant satisfies this burden, the plaintiff must prove that the articulated

reasons are a mere pretext for discrimination. McDonnell Douglas, 411 U.S., at 804-805.

A plaintiff attempting to prove race discrimination may do so “either directly by persuading

the court that a discriminatory reason more likely motivated the employer or indirectly by showing

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19

that the employer’s proffered explanation is unworthy of credence.” Burdine, 450 U.S. at 256; U.S.

Postal Service v. Aikens, 460 U.S. 711, 714-715 (1983); Rosenfield v. Wellington Leisure Products,

Inc., 827 F.2d 1493, 1495 (11

th Cir. 1987).

The quantum of proof necessary to defeat a motion for summary judgment when the

defendant presents a legitimate, non-discriminatory reason for its decision was discussed by the

Eleventh Circuit in Howard v. BP Oil Co., 32 F.3d 520, 525 (11th Cir. 1994). The Eleventh Circuit,

interpreting St. Mary's stated:

St. Mary's holds that proof that a defendant's articulated reasons are

false is not proof of intentional discrimination; it is merely evidence

of intentional discrimination. However, evidence of intentional

discrimination is all a plaintiff-appellant needs to defeat a motion for

summary judgment. That evidence must be sufficient to create a

genuine factual issue with respect to the truthfulness of the

defendant's proffered explanation.

Howard, 32 F.3d at 525. "Under St. Mary's, a plaintiff withstands summary adjudication by

producing sufficient evidence to allow a reasonable finder of fact to conclude that the defendant's

articulated reasons for its decision are not believable." Id. at 526. See also Combs v. Plantation

Patterns, 106 F.3d 1519, 1532 (11

th Cir. 1997)("Once a plaintiff has established a prima facie case

and has put on sufficient evidence to allow a factfinder to disbelieve an employer’s proffered

explanation for its actions, that alone is enough to preclude entry of judgment as a matter of law.")

a. Race Discrimination

Defendantspends a great deal of time arguing that Plaintiff cannot meet her prima facie case

of hostile work environment. However, Plaintiff’s claims are also based on race discrimination

based on the fact that her race was a motivating factor in the decision to terminate her. Although

Plaintiff is white, she may still maintain a claim for race discrimination.

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20

As part of plaintiff’s prima facie on his discriminatory termination claim,she mustshow that

“[s]he is a member of a protected class, that [s]he was qualified for his position, that he was

terminated and that he was replaced by someone outside his protected class.” See Hawkins v. Ceco

Coporation, 883 F.2d 977, 982 (11

th Cir. 1989).

It is undisputed that Plaintiff wasthe onlywhite employee working with all black co-workers

during the 2004-2005 school year. (See Doc. #31, ¶ 10). Defendant also acknowledgesthat Plaintiff

was a white employee working in a majority black school in a majority black neighborhood with all

black co-workers. When Plaintiff raised specific complaints that race was a factor in the way she

was being treated, the Defendant made the decision to terminate her. Defendant was required to

investigate her complaints, yet failed to do so. Rather than address the issues Plaintiff raised,

Defendant took the easy road and terminated Plaintiff. Clearly, because Defendants did not want to

conduct an investigation and "stir the pot" with the black co-workers, Plaintiff was terminated

because she was the only white employee and the employee who made complaints of racial

problems. Plaintiff was replaced by a black female, Mary Carter. This evidence is sufficient to

survive summary judgment on a race discrimination claim.

b. Hostile Work Environment

It has been clearly established that whether a hostile environment exists is a question of fact

to be determined upon consideration of the "totality of the circumstances." Meritor Savings Bank

v. Vinson, 477 U.S. 57, 69, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986). In Harris v. Forklift Systems,

Inc., 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993), the Supreme Court unanimously held that the factual

issue to be decided in a hostile work environment claim is whether the environment, based on all

facts and circumstances, was so discriminatory, abusive, or hostile that it altered the terms and

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21

conditions of employment for those within the protected class. Harris, 114 S. Ct. at 370. See

National Railroad Passenger Corporation v. Morgan, 122 S.Ct. 2061, 2074 (2002)(“A hostile

environment claim is comprised of a series ofseparate actsthat collectively constitute one ‘unlawful

employment practice.”).

In orderto make out a prima facie case for a racially hostile work environment, Plaintiff must

show (1) that she belongs to a protected group; (2) that she has been subject to unwelcome

harassment; (3) that the harassment complained of was based on race; (4) that the harassment

complained of was sufficiently severe or pervasive to alter the terms and conditions of employment

and create a discriminatory abusive working environment; and (5) that the employer is responsible

for such environment under either a theory of vicarious or direct liability. Miller v. Kenworth of

Dothan, Inc., 277 F.3d 1269, 1276 (11

th Cir. 2002) (citing Mendoza v. Borden, Inc., 195 F.3d

1238,1245 (11

th Cir. 1999)).

Plaintiff hassufficiently alleged numerousincidents of harassment against her by a black coworker that were clearly based on her race and clearly affected her work. (See Section II(B) above).

This evidence shows that the conduct altered her working conditions and made it difficult for her to

do her job. See Harris, 510 U.S. at 25 (Ginsberg, J., concurring)( “it suffices to prove that a

reasonable person subjected to the harassing conduct would find ... that the harassing conduct so

altered the working condition as to ‘make it more difficult to do the job.’”).

Applying the Eleventh Circuit precedent to the facts of this case reveals that there is at least

a question of fact as to whether the environment created and ignored by Defendant was severe or

pervasive. See generally the following cases where the Eleventh Circuit found hostile environment

claims actionable on a case by case basis by evaluating the totality of the circumstances: Hulsey v.

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10Defendant does not address whether Plaintiff suffered an adverse action, but it is undisputed that Plaintiff

terminated from her position by being non-renewed, which is effective as a termination.

11

The Eleventh Circuit “has recognized that §1981 includes a cause of action for retaliation....” Tucker v.

Talladega City Schools, 171 Fed.Appx. 289 (11

th Cir. 2006); Andrews v. Lakeshore Rehab. Hosp., 140 F.3d 1405,

1412-13 (11

th Cir. 2001)(recognizing that §1981 retaliation claims are viable after the 1991 amendments to §1981).

22

Pride Rest., LLC, 367 F.3d 1238 (11

th Cir. 2004); Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269

(11

th Cir. 2002); Olson v. Lowe’s Home Centers Inc., 130 Fed. Appx. 380 (11th Cir. 2005); Johnson

v. Booker T. Washington Broadcasting Service, Inc., 234 F.3d 501 (11

th Cir. 2000); and Dees v.

Johnson Controls World Services, Inc., 168 F.3d 417 (11

th Cir 1999); Malone vs. K-Mart Corp., 51

F.Supp.2d. 1287 (M.D.Ala. 1999).

Plaintiff reported these incidents yet Defendant failed to investigate her complaints and

terminated her employment. There is clearly a question of fact as to whether the harassment is

sufficiently severe or pervasive especially considering the fact that Defendants were made aware of

the conduct and terminated Plaintiff rather than addressing her concerns. Plaintiff has clearly

established that the harassment she suffered was based on her race and that the harassment was so

severe and pervasive that it lasted over two years of her employment and that it altered her

employment until the point where she was terminated from that employment because of her

complaints.

B. PLAINTIFFHAS SUFFICIENTLY STATEDACLAIMFOR RETALIATION

1. Prima Facie Case

To establish a prima facie case of retaliation, plaintiff must show that (1) she engaged in

statutorily protected expression; (2) she suffered an adverse employment action

10

; and (3) there is

some causal relation between the two events. EEOC v. ReichholdChem.,Inc., 988 F.2d 1564, 1571-

72 (11

th Cir. 1993)11

.; Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1454 (11

th Cir. 1998).

Case 3:06-cv-00700-WHA-WC Document 37 Filed 06/28/2007 Page 22 of 42
Furthermore, §1981 claims of employment discrimination are analyzed in the same manner as Title VII. Standard v.

A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11

th Cir. 1998)(explicitly addressing a Title VII race discrimination

claim with the understanding that the same analysis applied to both §1981 and Title VII).

12 Under the opposition clause, a plaintiff engaged in “statutorily protected activity” when he protests an

employer’s conduct and demonstrates “a good faith, reasonable belief that the employer was engaged in unlawful

employment practices. Little v. United Tech., Carrier Transicold Div., 103 F.3d 956, 960 (11

th Cir. 1997).

Therefore, regardless of whether the employer’s conduct is lawful or unlawful, an employee is protected when if she

believes she is being discriminated against. See Swanson v. Civil Air Patrol, 37 F.Supp.2d 1312, 1325 (M.D. Ala.

1998).

23

Summary judgment is ordinarily inappropriate once a prima facie case of retaliation has been

established. Hairston, 9 F.3d at 919-20.

a. Protected Expression

Plaintiff has clearly established that she engaged in protected expression. She made

complaints about racial discrimination to her immediate supervisors, Densel and Walker, and she

went up the chain of command to Passmore and Adams and made a formal complaint concerning

racial discrimination and harassment. (See Exh. I). Aftershe wasfinally told of her termination she

went Dr. DiChiara to complain about these same issues. Each of these activities is a protected

activity.

Plaintiff has met a prima facie case of retaliation because of the participation clause of Title

VII’s anti-retaliation provision and the opposition clause

12

. By making a complaint of racial

discrimination Plaintiff was not only participating in a claim of discrimination she is also opposing

the discrimination that was being taken against her. “Statutorily protected expression includes

internal complaints of [racial] harassment to superiors, as well as complaints lodged with the

EEOC...” Pipkins v. City of Temple Terrace, Florida, 26 F.3d 1197, 1201 (11

th Cir. 2001)(emphasis

added); see also Rollins v. Fla. Dep’t of Law Enforcement, 868 F.2d 397, 400 (11

th Cir. 1989)(“the

protection afforded by the statue [here, § 1981] is not limited to individuals who have filed formal

Case 3:06-cv-00700-WHA-WC Document 37 Filed 06/28/2007 Page 23 of 42
24

complaints, but extends as well to those ... who informally voice complaints to their superiors or

who use their employers’ internal grievance procedures.”)(emphasis added). Opposing an unlawful

employment practice regarding discrimination constitutes engaging in statutorily protected

expression. See Clover v. Total Systems Servs., Inc., 176 F.3d 1346, 1351 (11

th Cir. 1999).

“To recoverforretaliation, the plaintiff need not prove the underlying claimof discrimination

which led to [her] protest, so long as [she] had a reasonable good faith belief that the discrimination

existed.” Meeks v. Computer Assoc. Intern., 15 F.3d 1013, 1021 (11

th Cir. 1994); see Jackson v.

Birmingham Bd. of Educ., 544 U.S. 167, 187-88, 125 S.Ct. 1497 (2005)(the SupremeCourtrecently

stated that “no Court of Appeals requires a complainant to show more than [s]he had a reasonable,

good-faith belief that discrimination occurred to prevail on a retaliation claim.”). Therefore,

retaliation does not have to be based on actual race discrimination, “because a retaliation claim may

succeed where no [ race] discrimination ever took place.” Id. at 187-88. Because the merits of

Hutchinson’s underlying claims are irrelevant to the retaliation claims, Plaintiff has sufficiently

established a claim of retaliation. It is undisputed that Passmore, Densel and Adams were aware and

acknowledge that Plaintiff was complaining about racial discrimination and racial issues; whether

they believed the merits of this complaint is irrelevant to the retaliation analysis.

b. Casual Connection

To meet the casual link requirement the plaintiff “merely has to prove that the protected

activity and the negative employment action are not completely unrelated.” E.E.O.C. v. Reichhold

Chemicals, Inc., 988 F.2d 1564, 1571-72 (11

th Cir. 1993). The evidence produced by Plaintiff to

meet her prima facie case also establishes that Defendant’s legitimate reasons for termination were

merely pretext for the real reasons, which were race discrimination and retaliation. Courts

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25

“interpret the casual link requirement broadly; a plaintiff merely has to prove that the protected

activity and the negative employment action are not completely unrelated.” Meeks v. Computer

Assoc. Intern., 15 F.3d 1013 (11

th Cir. 1994)(citing Reichhold Chem., Inc., 988 F.2d at 1571-

72)(other citations omitted).

When a plaintiff makes an internal complaint of discrimination and is terminated within a

short time frame of the complaint, such close temporal proximity is sufficient to survive summary

judgment. Brungart v. BellSouth, 231 F.3d 791, 799 (11

th Cir. 2000)(citing Gupta v. Fla. Bd. of

Regents, 212 F.3d 571, 590 (11

th Cir. 2000)(“close temporal proximity between an employee’s

protected conduct and the adverse employment action issufficient circumstantial evidence to create

a general issue of material fact of a casual connection.”) These complaints as described are clearly

protected activity. See Holifield, 115 F.3d at 1566 (voicing concern about racial discrimination to

superiors is protected activity under Title VII); Pipkins, supra; Rollins, supra.

Clearly, a reasonable trier of fact could conclude from this evidence that plaintiff was

terminated, not for the reasons given by Defendant, but for the complaint of discrimination. See

Swanson v. Civil Air Patrol, 37 F.Supp.2d 1312, 1336 ([M.D. Ala] 1998)(when Plaintiff was

terminated within a short time frame of making an internal complaint by the decision maker he

complained to, the evidence is sufficient to survive summary judgment).

As stated, Plaintiff was effectively terminated the day after she made a complaint of

discrimination. Although she was not actually dismissed until the end of year, it is clear the decision

was made the day after and the supervisory decision-makers merely rubber-stamped this decision.

The fact that Densel, Passmore and Adams were aware of the protected activity and made their

decision to terminated Plaintiff the next day issufficient to survive summary judgment on Plaintiff’s

Case 3:06-cv-00700-WHA-WC Document 37 Filed 06/28/2007 Page 25 of 42
13Of course, Adams also played a major role in the decision and was present at Hutchinson’s formal

complaint meeting. However, because Mr. Adams is now deceased, Plaintiff does not have testimony on the basis

for his recommendation.

26

claims.

13 This evidence alone should is sufficeint to establish the casual connection element. See

Farley v. Nationwide Mutual Ins. Co., 197 F.3d 1322, 1446 (11

th Cir. 1999)(“[The Eleventh Circuit]

has plainly held that a plaintiff satisfies this element if he provides sufficient evidence that the

decision-maker became aware of the protected conduct, and that there was close temporal proximity

between the awareness and the adverse employment action.”); see also Holifield, 115 F.3d at 1567

(evidence that decision-maker was aware of the protected activity at the time of the adverse job

actions was sufficient to establish that “the protected activity and the negative employment action

are not completely unrelated.”); Swanson, 37 F.Supp.2d at 1336 ([M.D. Ala] 1998)(order denying

reconsideration)(“[T]he timing, coupled with the fact that [plaintiff’s] protected activity was an

internal grievance complaining of unlawful harassment, against[him], by the very person who

fired [him], was enough to show a material question of fact asto whether[the employer’s] proffered

non-discriminatory reason was pretext for retaliation.”)(emphasis added).

Although Defendant may argue that Dr. DiChiara and the Board did not have knowledge of

these complaints at the time of the non-renewal, these parties are liable under the cats-paw theory

because it is undisputed that they “rubber-stamped” this decision without conducting any internal

investigation. (See Argument below). Because Densel, Passmore and Adams were the actual

decision-makers, their knowledge of the harassment complaintsis what effectively led to Plaintiff’s

termination. When a decision-maker uses impermissible bias (discriminatory bias and retaliation),

the bias can be imputed to the upper level Defendants who follow recommendationsthat were based

on the impermissible bias. Dickson v. LabCorp, 396 F.Supp.2d 1298, 1304 (M.D. Ala. 2005)(J.

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27

Thompson)(although upper level supervisor made ultimate decision to terminate Plaintiff, his

decision was based entirely upon information conveyed to him by lower level supervisors;

furthermore, it is relevant to look at what the lower level supervisors did not report to upper

management); see also Jones v. Bessemer Carraway Med. Ctr., 151 F.3d 1321, 1324 (11

th Cir.

1998)(depending on the factual circumstances persons other than the final decisionmaker may be

important in determining who made actual decision in employment discrimination cases); Herawi

v. Ala. Dep’t of Forensic Sciences, 311 F.Supp.2d 1335, 1348 n. 24 (N.D. Ala. 2004)(racial bias of

subordinate supervisor is relevant in determining what decision-maker based his decision on;

furthermore, biased supervisor who may not have had authority to terminate can make a company

liable if that supervisor had direct input into the decision to terminate); Sommers v. Pediatric Serv.

Of American, Inc., 2006 WL 263599 (M.D. Fla., Feb. 1, 2006)(a dispute among Defendant’s own

witness as to who made ultimate decision and who had authority to terminate Plaintiff creates a

genuine issue of material fact to preclude summary judgment); Goldsmith v. City of Atmore, 996

F.2d 1155, 1163 (11

th Cir. 1993)(a decision-maker’s role can be established by circumstantial

evidence);see also cats-paw theorydiscussed below); Stimpson v.City of Tuscaloosa, 186 F.3d 1328

(11

th Cir. 1999)(when biased recommender[s] of an adverse employment action and actual decisionmaker are not the same person, plaintiff must show that discriminatory animus [retaliation for

complaint] not [performance issues or safety concerns] were the reason for the termination).

The evidence in the record clearly indicates and there is no doubt that Densel, Passmore and

Adams made the actual decision to terminate/non-renew Plaintiff and whether the Board

acknowledges that they had actual authority is irrelevant and clearly a disputed fact. These

supervisorsmade their decision on impermissible bias after Plaintiff made her complaint. Theygave

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14Again, Plaintiff states that the evidence of Pretext applies to the race discrimination and retaliation claims

under Title VII, § 1981 (through § 1983) and the Equal Protection claims.

28

substantial input to upper-levelsupervisors who had authority to make the decisions. What they told

these supervisorsis clearly in dispute and in fact, they may have told the supervisors different things

or withheld information about the formal complaint of harassment. Therefore, the ultimate decisionmakers based their decisions on impermissible bias and can be held liable for this.

2. PRETEXT

14

“In order to establish pretext, the plaintiff is not required to introduce evidence beyond that

already offered to establish the prima face case.” Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913,

921 (11th Cir.1993). “Accordingly, the grant of summary judgment, though appropriate when

evidence of discriminatory intent is totally lacking, is generally unsuitable in Title VII [or §1981]

cases in which the plaintiff has established a prima facie case because of the ‘elusive factual

question’ of intentional discrimination.” Hairston, 9 F.3d at 921 (citing Texas Dept. of Community

Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981)). A plaintiff

may show pretext using comparative evidence, statistical evidence or direct evidence of retaliation.

Miles v. M.N.C. Corp., 750 F.2d 867 (11

th Cir. 1985). Here, Hutchinson can point to a great deal

of evidence from which a reasonable factfinder could infer a retaliatory motive from defendants’

actions, along with specific examples of weaknesses and inconsistencies in defendants’ proffered

reasons.

In order to establish pretext, plaintiff is allowed to produce evidence “sufficient to permit a

reasonable fact finder to conclude that the reasons given by the employer were not the real reasons

for the adverse employment decision.” Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th

Case 3:06-cv-00700-WHA-WC Document 37 Filed 06/28/2007 Page 28 of 42
29

Cir. 1997). Pretext is established if a plaintiff can “demonstrate such weaknesses, implausibilities,

inconsistencies, incoherences, or contradictions in the employer’s proffered legitimate reasons for

its action that a reasonable factfinder could find them unworthy of credence.” Combs, 106 F.3d at

1538; see also Hamilton v. Montgomery County Bd. of Educ., 122 F.Supp. 1273, 1281 (M.D. Ala.

2000)(citations omitted)(“The trier of fact may infer the ultimate fact of discrimination from the

falsity of the employer’s explanation.”). If an “explanation is unworthy of credence” it is akin to

“affirmative evidence of guilt.” Reeves v. Sanderson Plumbing, Inc., 530 U.S. 133, 147 (2000).

Indeed, “once the employer’sjustification has been eliminated, discrimination maywell be the most

likely alternative explanation, especially since the employer is in the best position to put forth the

actual reason for its decision.” Id.

A “[Title VII or §1981] plaintiff may defeat a motion forsummary judgment by undermining

the credibility of a defendant’s explanation’s for its actions.” Arrington v. Cobb County, 139 F.3d

865, 875 (11th Cir. 1998). The Eleventh Circuit is clear that evidence of an employer who is

“shifting explanations for its actions” is sufficient evidence of pretext. Bechtel Constr. Co. v.

Secretary of Labor, 50 F.3d 926 (11th Cir. 1995); Cleveland v. Home Shopping Network, Inc., 369

F.3d 1189, 1194 (11th Cir. 2004)(inconsistency in articulating the reasons for an action is evidence

of pretext).

a. Defendants have stated different, inconsistent and untrustworthy

reasons for Plaintiffs termination.

Plaintiffs have established that Defendants have given inconsistent reasons for her

termination. Densel have stated that Plaintiff was terminated because of safety concerns regarding

Hutchinson’s husband, Mr. Will McCart, although they cannot state that anything McCart did was

Case 3:06-cv-00700-WHA-WC Document 37 Filed 06/28/2007 Page 29 of 42
30

violent and Passmore understood that he was upset because his wife had been cut on her hand.

Passmore and Densel testified that they brought their concerns to Sparks on the same day

they decided to terminate (non-renew) Plaintiff. At this point, the Defendants story takes on

inconsistencies and becomes untrustworthy. While Densel and Passmore state they went to discuss

Mr. McCart and how he was a potential safety issue (even though he was not employed by the

Board), Mr. Sparks only remembers discussing alleged “performance problems” and “teamwork”

problems that Hutchinson had. This is despite the fact that Densel and Passmore, her immediate

supervisors, testify that Hutchinson was a good worker and did not have performance problems.

Sparks testified that he based his recommendation to terminate Hutchinson because of alleged (but

clearly untrue) poor performance and teamwork issues.

The inconsistency continued when Plaintiff filed an EEOC charge. Defendant stated that

Plaintiff was not terminated for poor work performance, but because “she complained constantly to

her supervisor, and when the supervisor attempted to have [Plaintiff] and the wrong-doer meet

together with the supervisor, [Plaintiff] refused to do so.” An employers inconsistent statements or

inconsistentreasonsforterminating Plaintiffissubstantial evidence of discrimination and/or pretext

and should be sufficient to survive a summary judgment motion. See Tidwell v. Carter Prods., 135

F.3d 1422, 1428 (11

th Cir. 1998); see also Stallworth v. E-Z Serve Convenience Stores, 2001 WL

125304, No. 99-D-1503-N (M.D. Ala. Feb. 12, 2001)(De Ment, J.)(when an employer offers

conflicting reasons for an employment action, such inconsistent reasons can establish pretext).

Plaintiff hassufficiently established that the Defendant’sreasons contain “such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in [it’s] proffered legitimate

reasons for its action that a reasonable factfinder could find them unworthy of credence.” Combs,

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31

supra at 1538; Hamilton,supra at 1281. Such inconsistencies and untrustworthiness clearly indicate

that Plaintiff has established a question of fact asto the true reason for her termination and therefore

summary judgment must be denied.

b. Plaintiff was never disciplined for any of problems at work.

Because Mr. Sparks has testified that he recommended termination based on poor

performance, Plaintiff’s performance is brought into issue. When an employer fails to give any

written discipline to the plaintiff prior to his termination yet claims “poor performance” was the

reason for termination, the employer’s legitimate reason can be considered pretext. See Clemmons

v. Domino’s Pizza, Inc., 73 F.E.P., 1743 (M.D. Fla.), aff’d 132 F.3d 1459 (11

th Cir. 1997). Plaintiff

was never given any discipline or told anything about work performance. Densel and Passmore, the

Plaintiff’simmediate supervisors, were clearthatshe was a good employee without anyperformance

problems. Plaintiff’s performance evaluations also establish that she was a good employee.

Yet when Plaintiff asked the reason for her termination she was not given a reason. She was

jot told that her contract was being non-renewed. These reasons indicate that Defendants wanted

Plaintiff terminated because of her race and in retaliation for his complaints. See Santiago-Ramos

v. Centennial P.R. Wireless Corp., 217 F.3d 46, 56 (1

st Cir. 2000)(fact that employer did not tell

employee the reason for his termination helps support plaintiff’s pretext argument).

c. Plaintiff has Produced Evidence that Similarly-Situated

Employees were treated more favorably than her.

A plaintiff alleging discrimination may establish a prima face case and show pretext by

showing that “his employer treated similarly situated employees outside of his classification more

favorably....” Holifield v. Reno, 115 F.3d 1555, 1562 (11

th Cir. 1997; see also Maynard v. Board of

Regents, 342 F.3d 1281, 1289 (11

thCir. 2003);see also Billingsly v. JeffersonCounty, 953 F.2d 1351

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15

The actual chain of command also went through Mr. Sparks; however because Passmore and Densel

made the actual decision and because Sparks followed their recommendation, albeit for different reasons, Plaintiff

basis this information on Passmore and Densel’s testimony. Of course, Adams also played a major role in the

decision and was present at Hutchinson’s formal complaint meeting; however Mr. Adams is now deceased.

16 Dr. DiChiara testified that it was an established policy for supervisors to conduct investigations into

complaints of discrimination once those complaints are brought to the attention of a supervisor. Here, Mr. Adams

and Ms. Passmore terminated Plaintiff without conducting their own investigation and prior to ever allowing anyone

32

(11

thCir. 1992)(pretextshown where black employees were fired for excessive absences while white

employees were only suspended three days). Here, the complaints Plaintiff made were directly

related to how the black employees were being treated better and how it was unfair that black

employees, specifically Betty Cliatt, were not going to be punished for the way they treated her.

When the Defendants discussed transferring Plaintiff, Plaintiff indicated that it was not fair to

transfer her when it wasthe other employees who were causing the problems. (See Exh. I). Plaintiff

was the only white employee working among black co-workers in a predominantly black school in

a predominantly black neighborhood, Defendant terminated Plaintiff for her complaints rather than

investigate and addressthe concerns. Clearly, Defendantshowed favoritism to the black co-workers

by not addressing Plaintiff’s concerns.

3. By failing to properly investigate Plaintiff’s complaints, Defendants’ Dr.

DiChiara and the Phenix City Board of Education merely rubberstamped the discriminatory decision of Densel, Passmore and Adams.

Plaintiff contends that the Phenix City Board of Education and Dr. DiChiara merely put a

“rubberstamp” on the recommendations of Densel, Passmore and Adams who decided to terminate

Plaintiff because she was the only white employee working in a predominantly black school in a

predominantly black neighborhood.

15 When Plaintiff brought these issues of harassment and

discrimination to their attention by making a complaint, the actual decision-makers decided to

terminate her without conducting any internal investigation as they were required to do

16

.

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to investigate her complaints. “The bending of established rules may, of course be suggestive of discrimination.”

Walker v. Prudential Property and Cas. Ins. Co., 286 F.3d 1270, 1279 (11

th Cir. 2002); Thomas v. Dade County

Public Health Trust, 177 F.Supp.2d 1283, 1292 (S.D.Fla.2001) (“The inconsistent application of an employer's

policies can be circumstantial evidence of discrimination .”); Sheppard v. Sears, Roebuck & Co., 391 F.Supp.2d

1168, 1181 (S.D. Fla. 2005)(“One of the indirect ways a plaintiff may show pretext is by providing evidence of

deviation from company policy as circumstantial evidence of discrimination, especially where the rules were bent or

broken to give a non-minority applicant an advantage”).

17Although Dr. DiChiara may have made a cursory investigation by asking a few questions, he only did so

after Plaintiff and her husband made another complaint directly to him. He had already made his decision to nonrenew Plaintiff without conducting an independent investigation or ordering a subordinate to conduct an

33

By following the decision-makersretaliatory and discriminatory conduct, the Board and Dr.

DiChiara can be held liable for its discriminatory and retaliatory conduct. Stimpson v. City of

Tuscaloosa, 186 F.3d 1328, 1332 (11

th Cir. 1999)(recognizing that “one way of proving that the

discriminatory animus behind the recommendation caused the discharge is under the ‘cat’s paw’

theory. This theory provides that causation may be established if the plaintiff shows that the

decisionmaker followed the biased recommendation without independently investigating the

complaint against the employee.”). “A supervisory employee [Dr. DiChiara and the Board] may be

held liable for decisions ultimately rendered by her supervisor, if the plaintiff shows that the

intermediaryused the decisionmaker as a ‘cats paw.’” Hamilton v. MontgomeryCountyBd. of Educ.,

122 F.Supp.2d 1273, 1287 (M.D. Ala. 2000)(If a jury concludes that the intermediary acted out of

impermissible bias, and that the supervisor approved the intermediary’s recommendation without

giving adequate independent consideration, the jury could find a sufficient casual connection to

establish discrimination);

In cases wherein aCourt has dismissed a supervisoryauthoritywho takes part in the decisionmaking, but may not actually acted upon a discriminatory animus, Courts will allow the supervisory

authority to be dismissed from the claim only if that supervisory party conducted their own

independent investigation before making its decision.

17 See Stimpson, 186 F.3d at 1332, where the

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investigation.

34

Eleventh Circuit held that “the causal link between any discriminatory animus the City might have

had and her termination was broken by the Board’s hearing and its independent decision to

terminate her.”; Tucker v. Talladega City Schools, 171 Fed.Appx. 289 (11

th Cir. 2006)(discussing

Stimpson)(emphasis added). The Court of Appealsin Stimpson noted that the Civil Service Board’s

decision to terminate the Plaintiff was a “independent decision” only arrived at after “it conducted

a three day hearing to investigate the charges, and during the hearing plaintiff was represented by

legal counsel and was allowed to put on defense evidence and witnesses.” Stimpson, 186 F.3d at

1332.

Essentially, where the individual accused ofretaliatoryanimusis "an integral part" of amultilevel personnel decision, their improper motivation may "taint the entire ... process." Schoenfield

v. Babbitt, 168 F.3d 1257, 1268 (11

th Cir. 1999). “[C]ausation may be established if the plaintiff

shows that the decisionmaker followed the biased recommendation without independently

investigating” the intermediate employee’s actions. Stimpson, 186 F.3d at 1332; see also Tucker v.

Talladega City Schools, 171 Fed.Appx. 289, 297 (11

th Cir. 2006); Tucker v. Housing Authority of

the Birmingham District, 2007 WL 1034761 (11

th Cir., April 5, 2007)(“We have recognized the cats

paw theory may be utilized by the plaintiff” to prove that the discriminatory animus ultimately

caused the discrimination if there is no independent investigation).

Specifically, when the harasser or person deciding to retaliate/discriminate (i.e., Densel,

Passmore and Adams) makes a recommendation, but is not necessarily the final decision-maker, the

employer who rubber-stamps or approves of the decision without conducting an independent

investigation (i.e., the Board and Dr. DiChiara) can be liable for the decision to discriminate. See

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35

Llampallas v. Mini-Circuits, Inc., 163 F.3d 1236,1249 (11

th Cir. 1998)(citing Shager v. Upjohn Co.,

913 F.2d 398, 405 (7

th Cir. 1990); Long v. Eastfield College, 88 F.3d 300, 307 (5th Cir. 1996)(“if

...[the decision-maker] did not conduct his own independent investigation, and instead merely

‘rubber-stamped’the recommendations of[those who had the discriminatoryanimus], the casual link

between [the plaintiff’s protected activities and theirsubsequent termination would remain intact.”).

“In a cat’s paw situation, the harasser clearly caused the tangible employment action, regardless of

which individual actually signs the employee’s walking papers.” Llampallas, 163 F.3d at 1249

(citing Shager, 913 F.2d at 405)(stating that in such a situation “[t]he [decisionmaker] would not

more be a nonconductor [for discriminatory animus] ... than would be the secretary who typed [the

plaintiff’s] discharge papers knowing nothing of the discrimination that lay behind the discharge”).

“In effect the harasser isthe decisionmaker, and the titular ‘decisionmaker’ is a mere conduit for the

harasser’s discriminatory animus.” Id.

This case differs markedly from Stimpson in that the Board and Dr. DiChiara’s decision to

terminated Plaintiff was not done after an independent investigation. Plaintiff has produced evidence

that neither the Board nor Dr. DiChiara took any independent action or investigation regarding

Plaintiff’s termination and the reasons for her termination. Evidence in the record, in fact,

establishesjust the contrary. Densel and Passmore (and Adams) clearlyhad knowledge of Plaintiff’s

complaint of harassment and discrimination. Passmore acknowledges when Plaintiff made a formal

complaint to her and Mr. Adams that “she has mentioned it” [referring to racial hostility in the

workplace]. Mr. Adams acknowledged durng the formal complaint meeting that “I understand there

is some racial hostility”. Despite Plaintiff’s demand to file a written, formal complaint, Mr. Adams

advised her to get an attorney. No one involved conducted any independent investigation into

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36

whether Ms. Hutchinson’s complaints were valid. Rather, they made a decision to terminate her

employment the next day and the Board and Dr. DiChiara followed through with that

recommendation at the end of the school year.

C. Defendants are liable for claims under the Fourteenth Amendment, by

and through 42 U.S.C. § 1983.

1. Plaintiff has stated Violations of the Equal Protection Clause of

the Fourteenth Amendment.

A school board’s policy of extending preferential treatment to some employees because of

their race can violates the Equal Protection Clause of the Fourteenth Amendment. Wygant v.

Jackson Bd. of Educ., 476 U.S. 267 (1986). "Racial and ethnic distinctions of any sort are inherently

suspect and thus call for the most exacting judicial examination." University of California Regents

v. Bakke, 438 U.S. 265 (1978). Furthermore, courts may analyze § 1983 Equal Protection claims

using the same framework under Title VII or § 1981. See Richardson v. Leeds Police Dept., 71 F.3d

801, 805 (11

th Cir. 1995)(in cases where § 1983 is employment as a remedy for the same conduct

remedied by Title VII, the elements of the two causes of action are the same); Portera v. State of

Alabama Dept., of Finance, 322 F.Supp.2d 1285, 1294 (M.D. Ala. 2003)(to the extent [Plaintiff’s]

equal-protection claims are identical to the Title VII claims, those claims should be analyzed

together).

Here, by failing to investigate Plaintiff’s complaints of racial discrimination, Defendant

showed favoritism to the black employees by terminating Plaintiff, a white employee, and allowing

the black employees to remain employment without conducting any investigation into the merits of

the complaint.

2. Defendant Phenix City Board of Education and Defendant

DiChiara violated the policy of investigating complaints of

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18

Plaintiff’s § 1981, through §1983 claim against defendant DiChiara in his official capacity as

Superintendent of the Board of Education is being through her claims against the Phenix City Board of Education.

Kentucky v. Graham, 477 U.S. 159, 166, 105 S.Ct. 3099, 3105 (1985)(“Official capacity suits ... ‘represent only

another way of pleading an action against an entity of which an officer is an agent.’”)(citing Monell v. New York

City Dept. of Social Services, 436 U.S. 658, 690 n.55, 98 S.Ct. 2018, 2035, n.55 (1978)).

37

discrimination by failing to properly investigate the complaints

made by Hutchinson, establishing that the failure to investigate

was the true policy of the Board and DiChiara.

Plaintiff is pursuing § 1981 retaliation claims through the remedial provisions of §1983, as

provided for under this Circuit’s precedent, against defendant Swindle in his individual capacity.

18

Butts v. County of Volusia, 222 F.3d 891, 893 (11

th Cir. 2000)(Recognizing that where a plaintiff

seeks vindication of rights secured by § 1981 against a state actor, §1983 provides the exclusive

remedy for obtaining relief.); Tucker v. Talladega City Schools, 2006 WL 688967, *1)(recognizing

that “any such claim must be brought under the remedial provisions of §1983"). Therefore,

defendant’s arguments with regard to the dismissal of plaintiff’s §1981 claim is misplaced, as

recognized in Collier v. The Clayton County Community Service, 236 F.Supp.2d 1345 (N.D. Ga.

2002), when a plaintiff brings a § 1981 claim through § 1983, it simply “merges” into the §1983

claim. Collier v. The Clayton County Community Service, 236 F.Supp.2d 1345, 1369 (N.D. Ga.

2002).

“Monell states that “when execution of a government’s policy ... inflicts the injury ... [then]

the government as an entity is responsible under § 1983.” Holloman ex rel. Holloman v. Harland,

370 F.3d 1252, 1290 (11

th Cir. 2004)(citing Monell at 694). Furthermore, “[a] municipal governing

bodymay be held liable for acts or policies of individualsto whom it delegated final decisionmaking

authority in a particular area.” Harland, 370 F.3d at 1291 (citing Matthews v. Columbia Cty., 294

F.3d 1294, 1297 (11

th Cir. 2002)).

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38

Plaintiff is not basing her claims of retaliation against the Board and Dr. DiChiara on

respondeat superior, but is basing it on direct liability because the Board had policy-making

authority with which to decide whether to terminate Plaintiff and DiChiara was the decision-maker.

See Tucker v. Talladega City Schools, 171 Fed.Appx. 289, 297-98 (11

th Cir. 2006)(holding that

allegations that School Board had final decision-making authority and that was sufficient to satisfy

Monell and that Plaintiff did not have to demonstrate that the Board had “an official policy ... of

retaliating against employees who exercise protected speech.” ). It is clear that the City and the

Board can be liable for the retaliatory conduct taken against Hutchinson, even if the retaliation claim

is based on a § 1981 through the provisions of §1983. See Tucker, 171 Fed.Appx. at 298-300

(holding that Plaintiff presented sufficient evidence to survive summaryjudgment and that theBoard

could be liable for retaliation despite allegations of qualified immunity).

Defendants’ argue that because theBoard has no official policy permitting retaliation against

persons who complain about discrimination they cannot be held liable under Monell. However,

Plaintiff is confused why Defendant contends not having a policy is helpful. If Defendants had a

policy prohibiting race discrimination and retaliation, which they do not, they may have been able

to follow that policy and correct the situation. However, by failing to have an effective race

discrimination and retaliation policy, Defendant is attempting to shield itself from the law by

ignoring the law and disregarding Federal and Constitutional law. Finally, as established by

Plaintiff, although not in writing, the actual policy of the Board was to terminate an employee who

brings concerns of race discrimination to her supervisors.

The right to be free from retaliation in the employment context has been clearly established

for some time in this Circuit. Specifically, the Eleventh Circuit has concluded that, “[t]he right to

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39

be free from retaliation is clearly established as a first amendment right and as a statutory right

under Title VII....” Ratliff v. DeKalb County, Ga., 62 F.3d 338, 340 (11

th Cir. 1995)(emphasis

added)(also holding that there is no clearly established right under the equal protection clause to be

free from retaliation); see also Clark v. Alabama, 141 Fed.Appx. 777, 789 (11

th Cir. 2005)(same);

see also Leslie v. Ingram, 786 F.2d 1533, 1537 (11

th Cir. 1986)(“An intentional and wrongful

retaliation for the assertion of a constitutionally protected right is a substantive civil rights violation

which may be prosecuted in a federal court pursuant to 42 U.S.C. § 1983...”), abrogated on other

grounds by Graham v. Connor, 490 U.S. 386 (1990).

Furthermore, there can be no dispute that the equal-protection right to be free from

purposeful, race-based employment discrimination was clearly established at the time of the event

in question. Burns v. Gadsden State Community College, 908 F.2d 1512, 1517, 1518 (11

th Cir.

1990)(per curiam); see also Smith v. Lomax, 45 F.3d 402, 407 (11

th Cir. 1995); Yeldell v. Cooper

Green Hosp., Inc., 956 F.2d 1056, 1064 (11

th Cir. 1992) Busby v. City of Orlando, 931 F.2d 764,

775-76 (11

th Cir. 1991); Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1478-79 (11th Cir. 1991).

“The cases [which are clearly established] cover a wide range of employment decisions, including

discharge... and make it clear that intentional race discrimination is prohibited in the workplace.

This has been a long-established rule of which employers should well be aware.” See Portera, 322

F.Supp.2d at 1297.

When a Defendant retaliates against an employee who has made complaints of

discrimination, the Defendant has violated clearly established lawsthat have been in effect for many

years and have been established byCongress, to argue otherwise is against the expressCongressional

statutes and Eleventh Circuit law. Defendants DiChiara and the Board can be liable as the final

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40

decision-makers who followed the discriminatory animus of the actual decision-makers by rubber

stamping the decision without conducting an independent investigation.

D. Although Hutchinson was a Probationary Employee, Defendants have no right

to violate Federal and Constitutional Law.

“The purpose of the Fair Dismissal Act ... is ‘to provide nonteacher employees a fair and

swift resolution of proposed employment terminations.’” Ex parte Athens State College, 795 So.2d

709, 714 (11

th Cir. 2000)(quoting Bolton v. Board of School Comm’rs of Mobile County, 514 So.2d

820, 824 (Ala. 1987). Here, the Defendants did not provide Plaintiff with a fair and swift dismissal,

rather they decided to terminate her the day after her complaint (November 10, 2004), but did not

notify her until the end of the school year (May 2005).

This case is clearly distinguishable from Guyse v. Morgan County Board of Education, 516

So.2d 692 (Ala.Civ.App.1987) and Ray v. Decatur City Board of Education, 723 So.2d 680

(Ala.Civ.App. 1998), cited byDefendants, because here, Hutchinson is claiming violations offederal

law and that her dismissal was because of herrace and her complaints of discrimination. Regardless,

Plaintiff was not required to contest the procedure for her non-renewal because she is alleging

violations of federal law and constitutional violations.

CONCLUSION

Based upon the foregoing, it is clear that the Defendants’ Motion for Summary Judgment

should be denied. There are numerousfactual issuesinvolved which should be determined by a jury,

therefore, any grant of summary judgment would be in error.

Respectfully submitted,

s/ Joshua D. Wilson

Case 3:06-cv-00700-WHA-WC Document 37 Filed 06/28/2007 Page 40 of 42
41

Rocco Calamusa, Jr.

Joshua D. Wilson

Attorneys for the Plaintiff

OF COUNSEL

WIGGINS, CHILDS, QUINN & PANTAZIS, LLC

The Kress Building

301 19

th Street North

Birmingham, Alabama 35203

(205) 314-0500

Case 3:06-cv-00700-WHA-WC Document 37 Filed 06/28/2007 Page 41 of 42
42

CERTIFICATE OF SERVICE

I do hereby certify that on this the 28th day of June , 2007, I electronically filed the

foregoing with the Clerk of the Court using the CM/ECF system which willsend notification ofsuch

filing to the following:

Sidney S. Smith

Smith & Smith, PC

1503 Broad Street

Phenix City, AL 36867

/s/ Joshua D. Wilson

OF COUNSEL

Case 3:06-cv-00700-WHA-WC Document 37 Filed 06/28/2007 Page 42 of 42