IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

 EASTERN DIVISION

ELIZABETH L. HUTCHINSON, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO. 3:06cv700-WHA

)

PHENIX CITY BOARD OF ) (WO)

EDUCATION, LARRY E. DICHIARA, )

officially as Superintendent of the Phenix )

City Schools )

Defendants. )

MEMORANDUM OPINION AND ORDER

 I. INTRODUCTION

This cause is before the court on two Motions for Summary Judgment (Doc. #29 and

Doc. #30), filed by Defendants Phenix City Board of Education and Larry DiChiara,

respectively. The Plaintiff, Elizabeth L. Hutchinson, brings claims of race discrimination,

specifically claims of unlawful termination, hostile work environment, and retaliation under Title

VII of the Civil Rights Act of 1964, as amended, and by and through 42 U.S.C. § 1983 for

alleged violations of 42 U.S.C. § 1981 and the Equal Protection Clause of the Fourteenth

Amendment to the Constitution of the United States.

For the reasons to be discussed, the Motions for Summary Judgment are due to be

GRANTED, in part, and DENIED, in part.

II. SUMMARY JUDGMENT STANDARD

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper

“if the pleadings, depositions, answers to interrogatories, and admissions on file, together with

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2

the affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986).

The party asking for summary judgment “always bears the initial responsibility of

informing the district court of the basis for its motion, and identifying those portions of the

‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.”

Id. at 323. The movant can meet this burden by presenting evidence showing there is no dispute

of material fact, or by showing, or pointing out to, the district court that the nonmoving party has

failed to present evidence in support of some element of its case on which it bears the ultimate

burden of proof. Id. at 322-24.

Once the moving party has met its burden, Rule 56(e) “requires the nonmoving party to

go beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to

interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine

issue for trial.’” Id. at 324. To avoid summary judgment, the nonmoving party “must do more

than show that there is some metaphysical doubt as to the material facts.” Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). On the other hand, the evidence of

the nonmovant must be believed and all justifiable inferences must be drawn in its favor. See

Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). After the nonmoving party has responded

to the motion for summary judgment, the court must grant summary judgment if there is no

genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(c).

Case 3:06-cv-00700-WHA-WC Document 54 Filed 11/09/2007 Page 2 of 25
 For ease of discussion in the court’s analysis, the court refers to the defendants 1

collectively as “the Board,” even though DiChiara, in his official capacity, is also a defendant. 

This reference does not dismiss DiChiara’s role as a defendant in this case, but simply allows the

court to use one simple term to discuss the defendants collectively.

3

The summary judgment rule is to be applied in employment discrimination cases as in

any other case. Chapman v. A1 Transport, 229 F.3d 1012, 1026 (11th Cir. 2000) (en banc).

III. FACTS

The submissions of the parties establish the following facts, construed in a light most

favorable to the nonmovant:

Defendant Phenix City Board of Education (“the Board”) initially hired Plaintiff 1

Elizabeth L. Hutchinson (“Hutchinson”) as a child nutrition program worker (“CNP worker”) for

the 2003-2004 school year. The Board assigned Hutchinson to the South Girard School (“South

Girard”). Following the 2003-2004 school term, the Board renewed Hutchinson’s employment

contract for the 2004-2005 school term. On May 13, 2005, school officials at South Girard

informed Hutchinson that the Board would not renew her employment contract for the 2005-

2006 school term. According to school officials, a nonrenewal acts as an effective termination of

the employee. Hutchinson’s last day of employment as a CNP worker at South Girard was May

19, 2005.

Throughout her employment, Hutchinson, a Caucasian female, was in the racial minority

of CNP workers assigned to South Girard. Brenda Densel (“Densel”), also a Caucasian female,

succeeded Beverly Walker, an African-American female, as CNP Manager for South Girard

during the 2004-2005 school term, but Hutchinson nonetheless remained in the racial minority of

CNP workers without supervisory duties in the cafeteria at South Girard for her entire period of

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4

employment. 

Hutchinson’s direct supervisor for the 2004-05 school year was Densel, CNP manager for

South Girard, whereas Penny Passmore (“Passmore”) was the CNP supervisor for the entire tenschool system. Passmore reported directly to Mr. Adams (“Adams”), assistant school

superintendent (now deceased), who in turn reported to Superintendent Dr. Larry DiChiara

(“DiChiara”). Mr. Reginald Sparks (“Sparks”) was the principal for South Girard. 

During the two school terms that Hutchinson worked in the cafeteria at South Girard,

Hutchinson was subjected to harassment based on her race. Specifically, Betty Cliatt (“Cliatt”),

an African-American co-worker, continually made derogatory comments regarding “white

people,” including such statements as “white people are trailer trash,” “white people are stupid,”

“white people don’t know how to do anything,” and “it’s the white people doing the crimes.” 

Cliatt also continually made the statement that “she was going to send [Hutchinson] to the black

school so [Hutchinson] could learn to do things the black way.” In addition to these comments,

Cliatt would harass Hutchinson in other ways related to Hutchinson’s employment, including

refusing to share a sink with her, refusing to wash any pans handed to her by Hutchinson,

deliberately making a mess on the floor when Hutchinson was assigned to cleanup duty, and

swinging a wet mop at Hutchinson’s feet and legs thereby soaking her pants and shoes. Cliatt

did not harass any African-American co-workers in the same manner. Hutchinson complained to

Walker during 2003-04, and the next year to Walker’s successor, Densel, several times, but

despite reporting the racial harassment to her supervisors, the harassment continued.

On November 9, 2004, Hutchinson was injured while working in the South Girard

Case 3:06-cv-00700-WHA-WC Document 54 Filed 11/09/2007 Page 4 of 25
 Accounts vary as to the specific object “snatched” from Hutchinson’s hands. E.g., Pl.’s

2

Response at 3 (“something”); id. at 8 (“tongs”); Transcript of Meeting at 3:15 (“stuff”);

Deposition of Pritchett at 19:11 (“Saran Wrap”); Def.’s EEOC Position Statement at 3 (“clear

wrap box” with “serrated cutting edge”). At any rate, a co-worker snatched an object from her,

which cut her finger. The nature of the object is inconsequential. Out of deference to the

plaintiff’s account for summary judgment purposes, the court will assume it was tongs.

5

cafeteria when a co-worker “snatched” tongs from her hand, cutting her finger. Hutchinson 2

went to Densel’s office to get a bandage. Because there was no school nurse on campus at South

Girard, Densel took Hutchinson to the Board’s Central Offices where she was seen by a staff

nurse. Hutchinson was very emotional about the incident and again complained about the

harassment. Accordingly, Densel told her that she should speak with Passmore, the system’s

CNP supervisor, and Jeff Adams (“Adams”), the system’s Assistant Superintendent of

Personnel. Hutchinson spoke briefly with Passmore, but returned later that same afternoon with

her husband, Will McCart (“McCart”), in an attempt to make a formal complaint about the

harassment.

 Hutchinson and McCart went to Passmore’s office and told Passmore that they wanted to

make a formal complaint about the hostile treatment. They also requested to speak with Adams

and the Superintendent. Adams later entered this meeting and McCart told him that Hutchinson

wanted to file a formal complaint regarding the racial hostility in her work environment. Adams

indicated that Hutchinson would need to state some specific instances of hostility. Hutchinson

then relayed to Adams what she had told Densel about her treatment. Adams told her that she

needed to “turn a deaf ear to it.” Taped Transcript of Meeting, at 19:10.

On November 10th, the following day, Passmore met with Densel to discuss the previous

day’s meeting. They immediately drove together to principal Spark’s office, where Passmore

Case 3:06-cv-00700-WHA-WC Document 54 Filed 11/09/2007 Page 5 of 25
This was Densel’s one and only recommendation in her three years with the school 3

system. Densel Depo. at 47:17-22. She signed no forms or other paperwork in association with

Hutchinson’s nonrenewal. Id. at 48:5-8. In contrast, Passmore, the system CNP supervisor, had

done other nonrenewals before and after Hutchinson’s, although she couldn’t recall the exact

number. Passmore Depo. at 22:22-23. 

In identifying the final decisionmaker, it is unclear from the evidence before the court 4

whether it was Densel, the CNP Manager for South Girard who stated she was going to make

such a recommendation, or Passmore, who supervised the CNP program for entire school

system. On the one hand, Densel stated that she was going to make the recommendation, and

testimony indicates that the recommendation had come from the Brenda, the “Manager” (as

opposed to Passmore’s title of “Supervisor”). (Laney Depo. 22:5-7; Passman Depo. (Doc. #38-3)

at 82:15-83:14). On the other hand, Densel had never before made a recommendation, and has

not made one since, whereas Passmore has made multiple recommendations, although the

precise number is unknown. See supra note 3. Regardless of whether it was Passmore or Densel,

the testimony shows that the recommendation was made at the CNP level on November 10th and

subsequently passed up the chain of command without question or independent investigation,

until its ratification by the Board. For purposes of this motion, therefore, this court considers

Passmore and Densel to be the final decisionmakers. 

6

relayed the information to him. At the conclusion of their conversation, Densel commented,

“Unless you don’t agree with me, I’m going to recommend that Ms. Hutchinson be nonrenewed

for the next school year.” Sparks and Passmore both agreed with Densel. 3

Based on the November 10th meeting, a recommendation was made “from the Child

Nutrition Manager” that Hutchinson be nonrenewed. Depo. of Joshua Laney at 22:6-7. No 4

further investigation was made. After the manager’s recommendation, the Assistant

Superintendent’s office simply “follow[ed] it from there.” Id. at 22:17-18. Adams therefore

included Hutchinson as a nonrenewal on his list of tenure and nonrenewal recommendations to

Superintendent DiChiara, who relied without question on the list in making his recommendations

to the Board. DiChiara Depo. at 25:11-26:7, 48:1-49:15. The Board, in turn, relied solely on

DiChiara’s recommendation in deciding to nonrenew Hutchinson’s contract. Depo. of Lori

White, 24:1-23, 31: 1-12. 

Case 3:06-cv-00700-WHA-WC Document 54 Filed 11/09/2007 Page 6 of 25
 The analytical framework and proof requirements for claims of discrimination under 5

Title VII, § 1981 and the Fourteenth Amendment through § 1983 are identical. Accordingly, the

court shall explicitly address the Title VII claim with the understanding that this analysis applies

to the other claims as well. See Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11 th

Cir.); Hardin v. Stynchcomb, 691 F.2d 1364, 1369 (11th Cir. 1982) (holding that when § 1983 is

used as a parallel remedy to Title VII, the elements are the same); Whiting v. Jackson State

Univ., 616 F.2d 116, 122 (5th Cir. 1980).

7

Hutchinson was not informed of this decision, however, until May. At that time, after

being informed of her nonrenewal, Hutchinson and her husband met with DiChiara to again

discuss their unhappiness with her termination. Mary Carter, an African-American female,

replaced Hutchinson for the 2005-06 school year.

IV. DISCUSSION

Hutchinson brings claims for unlawful termination, hostile work environment, and

retaliation. The court will address each of these claims in turn.

A. Hutchinson’s Claims of Unlawful Termination

Hutchinson brings claims for unlawful termination under (1) Title VII, (2) § 1981 by and

through § 1983, and (3) the Equal Protection Clause of the Fourteenth Amendment by and

through § 1983. Under Title VII, it is unlawful for an employer “to fail or refuse to hire or to 5

discharge any individual, or otherwise to discriminate against any individual with respect to

compensation, terms, conditions, privileges of employment, because of such individual’s race,

color, religion, sex or national origin. . . .” 42 U.S.C. § 2000e-2(a)(1). In the Eleventh Circuit,

there are three methods by which a plaintiff may prove discrimination: (1) direct evidence of

discriminatory intent; (2) statistical evidence; and (3) circumstantial evidence. Walker v.

NationsBank of Fla. N.A., 53 F.3d 1548, 1555-56 (11th Cir. 1995). In the present case,

Hutchinson presents only circumstantial evidence in support of her claim of racial

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8

discrimination.

Where, as here, a plaintiff seeks to prove intentional discrimination on the basis of race

under Title VII by using circumstantial evidence of intent, the court applies the framework first

set out by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). Under this framework, the plaintiff must establish a prima facie case of discrimination. 

McDonnell Douglas, 411 U.S. at 802. After the plaintiff has established a prima facie case of

discrimination, the burden of production is placed upon the employer to articulate a legitimate

nondiscriminatory reason for its employment action. Texas Dept. of Community Affairs v.

Burdine, 450 U.S. 248, 254 (1981). The plaintiff may seek to demonstrate that the proffered

reason was not the true reason for the employment decision “either directly by persuading the

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

that the employer's proffered explanation is unworthy of credence.” Id. at 256; Combs v.

Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997). A plaintiff's prima facie case,

combined with sufficient evidence to find that the employer's asserted justification is false, may

permit the trier of fact to conclude that the employer unlawfully discriminated. Reeves v.

Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000).

1. Prima Facie Case

In a reverse discrimination suit, to establish a McDonnell Douglas prima facie case, the

reverse discrimination plaintiff must prove: (1) that she belongs to a class; (2) that she was

qualified for the job; (3) that she was subject to an adverse employment action; and (4) that she

was replaced by a person outside her class. See generally Wilson v. Bailey, 934 F.2d 301, 304

(11th Cir. 1991). 

Case 3:06-cv-00700-WHA-WC Document 54 Filed 11/09/2007 Page 8 of 25
 In the Board’s brief, the Board argues that Hutchinson was a probationary employee

6

under Alabama’s Fair Dismissal Act, ALA. CODE § 36-26-100, et seq. To the extent that this

argument may attempt to establish that no adverse employment action occurred, the court is

unpersuaded.

As Hutchinson noted, “[t]he purpose of the Fair Dismissal Act . . . is ‘to provide

nonteacher employees a fair and swift resolution of proposed employment terminations.’” Ex

parte Athens State Coll., 795 So.2d 709, 714 (Ala. 2000). The Act doesn’t intend to give the

state the right to violate federal law in the termination of an employee so long as that employee

remains within this probationary status. While the Board correctly contends that Hutchinson had

no right to further employment under her contract beyond the 2004-2005 school year, this

assertion does not preclude the court from finding that Hutchinson’s nonrenewal was an adverse

employment action. 

Simply, Hutchinson argues that her nonrenewal was based on racial discrimination. The

Fair Dismissal Act in no way forecloses a claim for discrimination under Title VII merely

because Hutchinson was not guaranteed renewal. Such a result would undermine the basic civil

9

Here, Hutchinson has established this prima facie case. First, Hutchinson has presented

evidence that she is a Caucasian female who worked in the South Girard cafeteria with primarily

African-American co-workers. In fact, during the 2004-2005 school year, Hutchinson was the

only Caucasian nonsupervisory CNP worker in the South Girard cafeteria. Accordingly, as a

Caucasian female in the South Girard cafeteria environment, Hutchinson was a member of a

class. Second, it is self-evident that Hutchinson was qualified for the position as a CNP worker,

as she was hired for the 2003-2004 school term and her contract was renewed for the 2004-2005

school term. Moreover, Hutchinson has presented evidence that she was rated as a qualified

employee without significant performance issues. See Plaintiff’s Exh. K, Hutchinson

Performance Evaluation 2004 and Plaintiff’s Exh. M, Hutchinson Performance Evaluation 2005. 

Third, Hutchinson was subject to an adverse employment action in the form of nonrenewal of

her employment contract for the 2005-2006 school term, which, according to Hutchinson’s

termination letter (Plaintiff’s Exh. N) and deposition testimony (Deposition of Passmore at

22:10-17; Deposition of Densel at 60:18-20), essentially serves as termination of employment.6

Case 3:06-cv-00700-WHA-WC Document 54 Filed 11/09/2007 Page 9 of 25
rights protected under federal law. 

In her Response in Opposition to Defendant’s Motion for Summary Judgment 7

(“Plaintiff’s Response”), Hutchinson alleges that DiChiara stated that the meeting was “cordial.”

Plaintiff’s Response at 13 n.4. Taken in its proper context, DiChiara responded to plaintiff

attorney’s suggestion that it was cordial by saying, “I would characterize that for the most part it

was cordial. Yeah, I would say for the most part, but there were times that it wasn’t as cordial.”

10

Fourth, Hutchinson has also presented evidence that she was replaced by Mary Carter, an

African-American female. See Defendant’s Reponses to Plaintiff’s Discovery (indicating that

Hutchinson’s replacement was Mary Walker, later identified correctly as Mary Carter). 

Accordingly, Hutchinson was replaced by a person outside of her class. Therefore, based on all

of the aforementioned evidence, Hutchinson has established a prima facie case of discrimination

under McDonnell Douglas.

2. Nondiscriminatory Reason

Because Hutchinson successfully has stated a prima facie case for racial discrimination,

under the McDonnell Douglas framework, the burden shifts to the Board to give a

nondiscriminatory reason for Hutchinson’s termination. In its brief, the Board argues that

Densel made the initial decision to nonrenew Hutchinson. (Deposition of Densel at 46:13-47:6.) 

This decision was based on safety concerns stemming from Passmore’s indication that, during

the meeting on November 9, 2004 and other times, McCart was angry and potentially a safety

threat. See Deposition of Passmore at 83:23-84:1 (indicating that McCart was “loud and

intimidating” in the Nov. 9 meeting); Deposition of DiChiara at 53:12-18 (McCart “scared”

Passmore, who found him “intimidating” and he hung around the school a lot as a “daily

presence”); Board’s EEOC Position Statement, at 3 (describing McCart as “irate . . . seemingly

out of control and . . . making accusations”) . Therefore, the primary nondiscriminatory reason 7

Case 3:06-cv-00700-WHA-WC Document 54 Filed 11/09/2007 Page 10 of 25
Deposition of DiChiara, at 64:23-65:3. DiChiara then continues to tell how Adams and

Passmore indicated that McCart’s tone was “very threatening.” Id. at 65:10.

11

given by the Board for Hutchinson’s termination is that the Board believed Hutchinson’s

continued employment raised a threat to other employees because of her husband’s intimidating

actions, particularly at the November 9 meeting.

3. Pretext

Under the McDonnell Douglas-Burdine framework, the burden now shifts back to

Hutchinson to demonstrate that the nondiscriminatory reason given by the Board is merely

pretextual. The Eleventh Circuit has held that, once the defendant produces a nondiscriminatory

reason that dispels the presumption of discrimination, a plaintiff then must produce sufficient

evidence that a reasonable factfinder could determine that the nondiscriminatory reason given by

the defendant is not the true reason for the adverse employment action. Cooper v. Southern Co.,

390 F.3d 695, 725 (11th Cir. 2004). “To show that the employer's reasons were pretextual, the

plaintiff must demonstrate ‘such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer's proffered legitimate reasons for its action that a reasonable

factfinder could find them unworthy of credence.’” Id. (quoting Combs v. Plantation Patterns,

106 F.3d 1519, 1528 (11th Cir. 1997)). The Eleventh Circuit has further determined that “[i]f

the plaintiff does not proffer sufficient evidence to create a genuine issue of material fact

regarding whether each of the defendant employer's articulated reasons is pretextual, the

employer is entitled to summary judgment on the plaintiff's claim.” Chapman v. AI Transport,

229 F.3d 1012, 1024-25 (11th Cir. 2000). 

In proving pretext, if the proffered nondiscriminatory reason “is one that might motivate

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See supra note 7 and accompanying text. 8

12

a reasonable employer, an employee must meet that reason head on and rebut it, and the

employee cannot succeed by simply quarreling with the wisdom of that reason.” Id. at 1030. 

Accordingly, an employer “may fire an employee for a good reason, a bad reason, a reason based

on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.”

Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1984). If multiple

nondiscriminatory reasons are proffered, the plaintiff must prove pretext as to each of them – so

long as one nondiscriminatory reason remains, Hutchinson has failed to successfully establish

pretext. See Chapman, 229 F.3d at 1024-25 (“If the plaintiff does not proffer sufficient evidence

to create a genuine issue of material fact regarding whether each of the defendant employer’s

articulated reasons is pretextual, the employer is entitled to summary judgment on the plaintiff’s

claim.”).

In the present case, Hutchinson argues primarily that the inconsistent reasons proffered

by individuals within the “chain of command” leading up to her nonrenewal by the Board

sufficiently create a question of fact as to whether the nondiscriminatory reason given by the

Board was pretextual. Specifically, Passmore and Densel both indicate that Hutchinson was

terminated because her husband, McCart, presented a potential safety threat based on his

behavior at the November 9 meeting, whereas Reginald Sparks, who was present at the 8

November 10th meeting with Passmore and Densel, and the Board’s EEOC Statement indicate

that Hutchinson’s nonrenewal was based on poor performance, excessive complaints, and an

inability to work cooperatively with the rest of the team. Sparks Depo. at 29:3-3:13, Def.’s

EEOC Position Statement at 3. 

Case 3:06-cv-00700-WHA-WC Document 54 Filed 11/09/2007 Page 12 of 25
 For a more detailed analysis of Bechtel, Tidwell and Stallworth, see Lewis v. Chattahoochee 9

Valley Cmty. Coll., 136 F. Supp. 2d 1232 (M.D. Ala. 2001) (Albritton, J.); see also Lett v.

Reliable Ruskin, No. 1:05cv479-WHA, 2006 WL 2056582, slip op. at *13-*15 (M.D. Ala.. July

24, 2006) (Albritton, J.).

13

In making this argument, Hutchinson relies on Bechtel Constr. Co. v. Secretary of Labor,

50 F.3d 926 (11th Cir. 1995), Tidwell v. Carter Prods., 135 F.3d 1422 (11th Cir. 1998), and

Stallworth v. E-Z Serve Convenience Stores, No. 99-D-1503-N, 2001 WL 125304, slip. op. at *4-

*5 (M.D. Ala. Feb. 12, 2001) (DeMent, J.).

In Bechtel, the Eleventh Circuit held that inconsistent reasons for termination articulated

by an employer can be evidence of pretext. Bechtel, 50 F.3d at 935. In Tidwell, however, the

Eleventh Circuit provided a more detailed explanation of the effect of such evidence, essentially

minimizing the breadth of Bechtel. Tidwell, 135 F.3d at 1427-28. Tidwell noted that

inconsistencies in an employer’s testimony can be evidence of pretext, but concurrently

recognized that the existence of an additional nondiscriminatory reason is not automatically

“inconsistent” and does not prove pretext. Id. at 1428.

In Stallworth, another judge in this district interpreted the Bechtel decision to mean that

when an employer offers conflicting reasons for an employment action, such inconsistent reasons

can establish pretext. Stallworth, 2001 WL 125304 at *4. On two occasions, the defendant in

Stallworth said that a particular reason was the sole reason for termination, but then, on a

subsequent occasion, gave an additional reason. The court concluded that, even if the second

reason could be viewed as complementing the first, because the defendant had previously

insisted that there was only one reason, a jury could conclude that the reasons are inconsistent

and, therefore, incredible. Id.

9

Hutchinson’s reliance on these cases fails to account for their important distinctions. 

Case 3:06-cv-00700-WHA-WC Document 54 Filed 11/09/2007 Page 13 of 25
 Hutchinson attempts to paint Sparks’ citation of poor performance as a suggestion that

10

the alleged threat posed by McCart could not be the true reason. This is not supported by the

record. Although Sparks offers a different reason—poor performance and inability to work as a

team—for Hutchinson’s nonrenewal, he doesn’t state that the safety threat posed by McCart was

not a possible reason for Hutchinson’s renewal or that anyone suggested the job performance

was the sole reason. He merely replied, when asked for the reason, that “ability to work as a

team” was the “main[]” reason. Sparks Depo. at 29:11-13. When asked about whether McCart

could have been a reason, Sparks did not say no, but merely that he didn’t recall anyone bringing

up McCart as a threat at the particular meeting which he attended. Id. at 31:1-10. This testimony

cannot therefore be construed as creating a true inconsistency as opposed to a different opinion

as to the “main” reason that Hutchinson was nonrenewed. 

14

First, Tidwell does not support Hutchinson’s position, but rather indicates that an additional

nondiscriminatory reason is not necessarily proof of pretext, essentially contradicting

Hutchinson’s argument. Second, the facts in the present case more closely resemble the facts of

Tidwell, rather than the facts in Bechtel and Stallworth. In Bechtel, the employer initially denied

a reason for the action and then later gave that exact reason, creating a blatant “inconsistency.”

See Bechtel, 50 F.3d at 935. In Stallworth, the employer initially stated that a particular reason

was the only reason but later recanted and provided additional reasons, thereby creating a blatant

“inconsistency.” Stallworth, 2001 WL 125304 at *4. In contrast, in the present case, two

distinct decision makers within the chain of command have promulgated two separate, but not

“inconsistent,” reasons for Hutchinson’s dismissal - (1) that McCart was a potential threat and

(2) poor performance / inability to work in a team environment. At no time has the Board, or

any individual within the chain of command, denied either of these reasons or indicated that one

of these reasons was the sole reason for dismissal. Accordingly, even though Hutchinson 10

claims that these reasons are “inconsistent,” thereby providing an evidentiary basis for pretext,

the court finds that these two reasons can coexist, each as an additional nondiscriminatory reason

to the other. Following the Tidwell precedent, these two reasons are not “inconsistent” and do

Case 3:06-cv-00700-WHA-WC Document 54 Filed 11/09/2007 Page 14 of 25
15

not prove pretext.

Besides her inconsistency argument, Hutchinson also attacks the Board’s “safety threat”

reason directly, albeit in cursory fashion, stating that none of the defendants can “state that

anything McCart did was violent and Passmore understood that he was upset because his wife

had been cut on her hand.” Pl.’s Response in Opposition to Motion for Summary Judgment at 29-

30; see also id. at 13 n.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 [sic] wife

got hurt that day.”) Furthermore, Hutchinson argues, DiChiara characterizes his May posttermination meeting with McCart and Hutchinson as “cordial.” Id. 

This argument, like the inconsistency argument, does not sufficiently prove that the

proffered reason of McCart’s “irate” behavior on November 9th was pretextual. Even taking all

facts and inferences in favor of Hutchinson, this evidence goes towards proving that the school’s

assessment of McCart’s behavior may have been unwise or an overreaction, but does not

constitute probative evidence that the proffered reason was untrue or fabricated. Whether the

proffered reason that McCart posed a safety threat was a “good reason, a bad reason, a reason

based on erroneous facts, or [] no reason at all,” Nix, 738 F.2d at 1187, it is not a discriminatory

reason, and Hutchinson cannot rebut it “by simply quarreling with the wisdom of that reason,”

Chapman, 229 F.3d at 1030. 

As the court notes, Hutchinson’s argument does not create a genuine issue of material

fact regarding whether the defendant’s proffered reason is credible or pretextual, but rather

attempts to attack the wisdom of the defendants’ rationale for arriving at the conclusion that

McCart was threatening. Although irrelevant for purposes of summary judgment, the court notes

Case 3:06-cv-00700-WHA-WC Document 54 Filed 11/09/2007 Page 15 of 25
16

that, while defendants do not allege physical violence, they present substantial testimony that

McCart was “loud and intimidating,” “irate,” “out of control,” “very threatening” and hanging

around the school as “a daily presence.” See Passmore Depo. at 83:23-84:1; DiChiara Depo. at

53:12-18. Hutchinson does not attempt to dispute this testimony, except to characterize

DiChiara’s description of his post-termination meeting with McCart as “cordial.” Pl.’s Response

at 13 n.4. This characterization is misleading. After the plaintiff’s attorney suggested to

DiChiara that the audiotaped meeting sounded cordial, DiChiara replied, “Yeah, I would say for

the most part, but there were times that it wasn’t as cordial.” Id. at 64:23-65:3. DiChiara then

continued to tell how Adams and Passmore found McCart’s tone “very threatening.” Id. at 65:10. 

Even if the wisdom of the defendants’ safety assessment of McCart were relevant to the veracity

of its proffered reason, therefore, Hutchinson’s reference to McCart’s lack of physical violence

fails to sufficiently demonstrate “such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions . . . that a reasonable factfinder could find [the proffered reason]

unworthy of credence.” Cooper v. Southern Co., 390 F.3d 695, 7235 (11th Cir. 2004) (internal

quotations omitted). 

To accept that Hutchinson’s characterization creates an issue of fact for trial would be to

engage in second-guessing school officials’ discretionary judgment as to the safety of its

campus. See, e.g., Amos v. Tyson Foods, Inc., 153 Fed. Appx. 637, 648 n.9 (11th Cir. 2005) (per

curiam) (unpublished) (rejecting plaintiff’s argument that defendant couldn’t use workplace

violence policy against her because she was not physically at work when she threatened coworker, on grounds that it would force the court to “second guess” the elements of the policy and

“when those elements are met.”). 

Case 3:06-cv-00700-WHA-WC Document 54 Filed 11/09/2007 Page 16 of 25
 Again, because the analytical framework and proof requirements for claims of 11

discrimination under the relevant statutes are identical, the court shall explicitly address only the

Title VII claim with the understanding that this analysis applies to the other claims as well. See

n.3, supra.

17

It should be noted that Hutchinson does present further arguments for pretext regarding

the other nondiscriminatory reasons given: poor performance and inability to work in a team

environment. The success of these arguments is irrelevant because, as discussed above,

Hutchinson fails to establish that one proffered reason—that McCart was a potential threat—was

pretextual. So long as one nondiscriminatory reason remains, Hutchinson has failed to

successfully establish pretext. See Chapman, 229 F.3d at 1024-25 (“If the plaintiff does not

proffer sufficient evidence to create a genuine issue of material fact regarding whether each of

the defendant employer's articulated reasons is pretextual, the employer is entitled to summary

judgment on the plaintiff's claim.”). Therefore, under the McDonnell Douglas-Burdine

framework, summary judgment on Hutchinson’s claims of unlawful termination is appropriate,

and the Defendants’ Motion for Summary Judgment in that regard is due to be GRANTED.

B. Hutchinson’s Hostile Work Environment Claim

Hutchinson brings her hostile work environment claims under (1) Title VII, (2) § 1981 by

and through § 1983, and (3) the Equal Protection Clause of the Fourteenth Amendment by and

through § 1983. To establish a claim for hostile work environment under Title VII, a plaintiff 11

must prove that the workplace is permeated with discriminatory intimidation, ridicule, and insult

so severe or pervasive that such actions alter the conditions of the victim’s employment, thereby

creating an abusive working environment. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). 

In doing so, the plaintiff must show: (1) that she belongs to a protected group; (2) that she was

subject to unwelcome harassment; (3) that the harassment was based on a protected

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18

characteristic of the employee, such as race or national origin; (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 the employer is responsible for such

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

Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002).

In the present case, the Defendants move for summary judgement on this hostile work

environment claim solely based on the argument that Hutchinson has not produced sufficient

evidence to satisfy the fourth element listed above - that the harassment was sufficiently severe

or pervasive to alter the terms and conditions of employment and create a discriminatorily

abusive working environment. This element has both an objective component and a subjective

component. “To be actionable, [the harassing] behavior must result in both an environment ‘that

a reasonable person would find hostile or abusive’ and an environment that the victim

‘subjectively perceive[s] . . . to be abusive.’” Id. at 1276. There is no question in this case as to

whether Hutchinson subjectively perceived Cliatt’s actions and remarks as hostile and abusive. 

It is apparent that Hutchinson attempted to report this harassment as abusive in the Nov. 9

meeting with Passmore and Adams after making several informal complaints about the abusive

behavior to her direct supervisors. Accordingly, the court will focus on the objective

determination of whether, based on the evidence viewed in a light most favorable to the plaintiff,

a reasonable person would find that Cliatt’s treatment of Hutchinson was hostile or abusive.

The Eleventh Circuit considers several factors in making this objective determination: (1)

the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is

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

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19

unreasonably interferes with the employee’s job performance. Id. (citing Allen v. Tyson Foods,

121 F.3d 642, 647 (11th Cir. 1997)). Moreover, the Eleventh Circuit recognizes that, in making

this objectiveness determination, the court should consider the totality of the circumstances, not

any one single factor. Miller, 277 F.3d at 1276. Applying this framework in the present case,

the court finds that Hutchinson has presented sufficient evidence to raise a question of fact in

regards to whether Cliatt’s harassment was hostile or abusive.

First, Hutchinson has produced sufficient evidence for a reasonable factfinder to

determine that Cliatt’s harassment occurred throughout Hutchinson’s employment. In fact,

Hutchinson has testified that, throughout her two years at South Girard, Cliatt “constantly” told

her that “she was going to send [her] to the black school so that she could learn how to do things

the black way.” See Deposition of Hutchinson, at 68:21-73:10). Hutchinson also has testified

that she complained of Cliatt’s ongoing harassment to both of her CNP managers, Walker in

2003-2004 and Densel in 2004-2005. Id. at 73 and 75-76. Furthermore, in her answers to the

Defendants’ interrogatories, Hutchinson again indicates that Cliatt’s treatment was ongoing

throughout her employment and was racially motivated. See Plaintiff’s Response to Defendants’

Discovery, at 2-3 (providing numerous specific statements made by Cliatt regarding race, as well

as specific instances of threatening or physical actions by Cliatt against Hutchinson). 

Accordingly, the court finds that a reasonable person could determine that the harassment was

ongoing throughout Hutchinson’s employment.

Second, in determining the severity of the harassment and whether the harassment was

physically threatening, the court finds that Hutchinson has presented sufficient evidence so that a

reasonable factfinder could determine that the harassment was severe, as well as physically

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20

threatening. Specifically, Hutchinson presents evidence that Cliatt repeatedly talked about

“white people” and referred to them as “trailer trash.” Id. Although on its face the term “trailer

trash” is not an express race-based insult as severe as other common nefarious terminology, the

court believes that a reasonable person plausibly could determine that, under modern slang

parlance, the reference to “white people” being “trailer trash” is a racial slur. See Rodgers v.

Western-Southern Life Ins. Co., 12 F.3d 668, 676 (7th Cir. 1993) (holding that a district court did

not err in determining that a facially race-neutral insult reasonably could be construed as a racial

slur). Moreover, applying a comparable rationale, the court believes that a reasonable person

could find that Cliatt’s repeated reference to “taking [Hutchinson] to the black school so that

[she] could learn to do things the black way” was physically threatening. This reference contains

no explicit threat. Coupled with her other actions, including striking Hutchinson in the legs and

feet with a wet mop, however, a reasonable person could determine that such a statement was

threatening.

Finally, Hutchinson also has presented adequate evidence for a reasonable person to

determine that Cliatt’s conduct interfered with her job performance. One specific example

occurred on several occasions. When Hutchinson was assigned to mop duty, Cliatt deliberately

would “pour food juice out of the pots onto the floor, look at [Hutchinson] and then laugh and

tell [her] that [she] had missed a spot.” Plaintiff’s Response to Defendants’ Discovery, at 4. 

Cliatt also would refuse to share the sink or her work area with Hutchinson, but such behavior

was not simulated with Cliatt’s African-American co-workers. Id. at 3. Furthermore, Cliatt

often refused to wash pans and dishes handed to her by Hutchinson. Id. Assessing these actions,

the court believes that a reasonable person could determine that Cliatt’s actions effectively

Case 3:06-cv-00700-WHA-WC Document 54 Filed 11/09/2007 Page 20 of 25
 As noted above, the analytical framework and proof requirements for claims of 12

discrimination under Title VII and §1981 are identical. Thus, the court shall explicitly address

the Title VII claim with the understanding that this analysis applies to the §1981 claim as well. 

See n. 3, supra.

In regard to Hutchinson’s retaliation claim under the Equal Protection Clause of the

Fourteenth Amendment, no such claim exists under the Fourteenth Amendment. See Ratliff v.

Dekalb County, Ga., 62 F.3d 338, 340-41 (11th Cir. 1995) (holding that no established right

exists under the Equal Protection Clause to be free from retaliation).

21

interfered with Hutchinson’s job performance.

Viewing the evidence in a light most favorable to Hutchinson and considering the totality

of the circumstances surrounding Cliatt’s harassment of Hutchinson, the court believes that a

reasonable factfinder could determine that Cliatt’s harassment of Hutchinson was sufficiently

severe or pervasive to alter the terms and conditions of employment and create a discriminatorily

abusive working environment. Accordingly, the Defendants’ Motion for Summary Judgment in

regard to the hostile work environment claim is due to be DENIED.

C. Hutchinson’s Retaliation Claim

Hutchinson brings retaliation claims under (1) Title VII, (2) § 1981 by and through 

§ 1983, and (3) the Equal Protection Clause of the Fourteenth Amendment by and through 

§ 1983. Title VII provides a cause of action against an employer for retaliating against an 12

employee who “has opposed any practice made an unlawful employment practice by this

subchapter, or because he has made a charge, testified, assisted, or participated in any manner in

an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). Claims

of retaliation which are based on circumstantial evidence, like those of the parties in the present

controversy, follow the traditional McDonnell Douglas tripartite framework of shifting burdens

of proof. Meeks v. Computer Assoc. Int’l, 15 F.3d 1013, 1021 (11th Cir. 1994); see also

Swanson v. Civil Air Patrol, 37 F. Supp. 2d 1312, 1325 (M.D. Ala. 1998). 

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22

1. Prima Facie Case

Under the McDonnell Douglas framework, Hutchinson must first prove a prima facie

case of retaliation. To establish this prima facie case, Hutchinson must prove the following

elements: (1) she participated in an activity protected by Title VII; (2) she suffered an adverse

employment action; and (3) there is a causal connection between the participation in the

protected activity and the adverse employment decision. Gupta v. Florida Bd. of Regents, 212

F.3d 571, 587 (11th Cir. 2000). 

Regarding participation in a protected activity, Hutchinson complained to her supervisors

about the harassment to which she was subjected. The Eleventh Circuit has noted that the

protection under Title VII “is not limited to individuals who have filed formal complaints, but

extends as well to those . . . who informally voice complaints to their superiors. . . .” Rollins v.

State of Fla. Dept.of Law Enforcement, 868 F.2d 397, 400 (11th Cir. 1989); see also Shannon v.

Bellsouth Telecomms., Inc., 292 F.3d 712, 716 n. 2 (11th Cir. 2002). The Eleventh Circuit

further has noted, however, that not all complaints to superiors qualify as participation in a

protected activity. Instead, a plaintiff must show that she had a good faith reasonable belief that

the employer was engaged in unlawful employment practices, meaning that the plaintiff’s

complaint must have been objectively reasonable. See Weeks v. Harden Mfg. Corp., 291 F.3d

1307, 1211 (11th Cir. 2002).

In the present case, Hutchinson’s complaints regarding racial harassment were

objectively reasonable. As noted above, based on the facts viewed in a light most favorable to

Hutchinson, a reasonable person could find that Hutchinson was subject to a hostile work

environment resulting from Cliatt’s harassment. In turn, Hutchinson’s belief that the Board was

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23

engaged in an unlawful employment practice by allowing a hostile work environment to exist

was objectively reasonable. Accordingly, Hutchinson has satisfied the first prong of the prima

facie case for her retaliation claim.

Regarding the second prong, the court finds that Hutchinson suffered an adverse

employment action when her employment contract was not renewed. The deposition testimony

of Passmore indicates that nonrenewal is equivalent to termination. Deposition of Passmore, at

22:10-17. Although the Board argues that Hutchinson was a probationary employee and had no

right to renewal, thereby meaning that her nonrenewal was not an adverse employment action,

the court is unpersuaded by this argument. See n. 4, supra. Therefore, Hutchinson has satisfied

the second prong of the prima facie case for her retaliation claim.

Finally, regarding the causal connection prong, the Eleventh Circuit has stated that “[t]o

establish that causal connection, a plaintiff need only show ‘that the protected activity and the

adverse action were not wholly unrelated.’” Clover v. Total System Services, Inc., 176 F.3d

1346, 1354 (11th Cir. 1999) (quoting Simmons v. Camden County Bd. of Educ., 757 F.2d 1187,

1189 (11th Cir.1985)). “At a minimum, a plaintiff must generally establish that the employer

was actually aware of the protected expression at the time it took adverse employment action.” 

Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993). Furthermore, “a plaintiff

satisfies this [causal connection] element if he provides sufficient evidence that the

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

proximity between this awareness and the adverse employment action.” Farley v. Nationwide

Mut. Ins. Co., 197 F.3d 1322, 1337 (11th Cir. 1999). 

In the present case, the deposition testimony of both Passmore and Densel indicate that

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See supra note 4. 13

24

the decision to nonrenew Hutchinson’s employment contract was made on November 10,

2004—the very next day after the November 9 meeting in which Hutchinson and McCart

notified Passmore and Adams of Cliatt’s discriminatory harassment. Deposition of Passmore, at

82:13-83:14; Deposition of Densel, at 46:13-49:5. Passmore, the CNP supervisor, was present

at both the November 9 meetings with Adams and the November 10 meeting with Sparks and

Densel. The court finds that a reasonable person could determine that the decision-makers in

regard to Hutchinson’s nonrenewal, Densel and Passmore, were aware of Hutchinson’s 13

protected activity of attempting to state a formal complaint regarding her hostile work

environment. Accordingly, Hutchinson has satisfied the third prong of the prima facie case,

thereby satisfying the entire prima facie case for retaliation.

2. Nondiscriminatory Reason and Pretext

Hutchinson relies on the same arguments with respect to pretext for her retaliation

claims, which are the subject of the courts’s discussion of Hutchinson’s unlawful termination

claims. As discussed above, as its nondiscriminatory reason for Hutchinson’s dismissal, the

Board sets forth the fact that Hutchinson’s husband, McCart, was viewed as a potential threat

based on his actions, particularly at the November 9 meeting. Because Hutchinson fails to

present sufficient evidence that this reason is pretextual, summary judgment is appropriate. 

Therefore, in regard to all of Hutchinson’s claims for retaliation, summary judgment is due to be

GRANTED.

IV. CONCLUSION

For the reasons discussed, it is hereby ORDERED as follows:

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25

1. In regard to Hutchinson’s unlawful termination claims in Count One, Count Two and

Count Three of the Amended Complaint, the Defendants’ Motions for Summary Judgement are

GRANTED, and judgment is entered in favor of the Board and DiChiara and against Hutchinson

on those claims.

2. In regard to Hutchinson’s hostile work environment claims set forth in Count One,

Count Two and Count Three of the Amended Complaint, the Defendants’ Motions for Summary

Judgment are DENIED.

3. In regard to Hutchinson’s retaliation claims in Count Four, Count Five and Count Six

of the Amended Complaint, the Defendants’ Motions for Summary Judgement are GRANTED,

and judgment is entered in favor of the Board and DiChiara and against Hutchinson on those

claims..

4. This case will proceed only on the hostile work environment claims set forth in Count

One, Count Two and Count Three of the Amended Complaint.

DONE this 9th day of November, 2007.

/s/ W. Harold Albritton 

W. HAROLD ALBRITTON

SENIOR UNITED STATES DISTRICT JUDGE

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