IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

EASTERN DIVISION 

ANGELA PRICE, 

 Plaintiff, 

v. 

ROANOKE CITY BOARD OF 

EDUCATION, 

 Defendant. 

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CIVIL ACTION NUMBER: 

3:06-cv-742-MEF 

ROANOKE CITY BOARD OF EDUCATION’S 

RESPONSE TO PLAINTIFF’S REPLY TO 

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 

 Defendant Roanoke City Board of Education respectfully moves the Court 

for entry of judgment as a matter of law. 

PRELIMINARY STATEMENT

 Plaintiff asserts vicarious liability for the alleged sexual harassment by a 

part-time crossing guard employee. Plaintiff is also a part-time crossing guard. 

 Plaintiff had formerly served the system as a full-time custodian. As a fulltime custodian, she attended the District’s Sexual Harassment program where the 

District’s anti-sexual harassment policy was discussed. Having attended that 

sexual harassment program, Plaintiff knew to report a sexual harassment complaint 

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to her supervisor. In 1998, she reported a sexual harassment complaint to her 

supervisor and it was effectively addressed. 

 In this case, Plaintiff admits she never brought her complaint to the attention 

of a supervisor prior to filing an EEOC complaint. Moreover, the fact is 

undisputed that no supervisor had actual or constructive knowledge of the alleged 

harassment. The fact is also undisputed that the alleged harassment was addressed 

immediately after the complaint came to the attention of the District’s supervisors. 

 Plaintiff filed her EEOC complaint on September 23, 2005. Plaintiff 

consulted an attorney in August of 2005. At no time between August of 2005 and 

September 23, 2005 did Plaintiff contact a supervisor to ask that her complaint be 

addressed. At no time between August of 2005 and September 23, 2005 did she 

ask anyone for a copy of the District’s sexual harassment policy. She did ask 

several people for copies of the full District Policy Manual which was being 

revised. She did not ask for the pertinent policy; nor did she ask any of the several 

people she talked to about registering her complaint for redress. 

 The record suggests – as school secretary Rosemarie Marshall stated in her 

affidavit (Ex. 12) (attached hereto as Appendix A) – that Plaintiff skirted a solution 

in order to position herself to seek monetary damages. 

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 This suggestion is reinforced by the fact that Plaintiff did nothing for two 

years – took no steps to have the situation remedied – but did compile notes in 

anticipation of a claim. 

 The Board policy asks employees to make timely complaints so that the 

District can respond. Each time Plaintiff did so the District responded in a 

thorough and expedited basis. 

 Plaintiff asks the Court to exempt her from doing the obvious: reporting her 

complaint to her principal or female assistant principal. Plaintiff asks the Court to 

exempt her from doing so in 2003, in 2004, and in 2005 prior to September 23, 

2005 when Price filed her EEOC complaint. Plaintiff asks the Court to exempt her 

even though she was in the small central office of Handley Middle School virtually 

every day where her principal and assistant principal worked. In August of 2005 

after consulting an attorney she claims she had problems obtaining a copy of the 

District’s policy manual. Plaintiff offers no explanation why she did not ask her 

principal or assistant principal at her school for one of the several policy manuals 

kept at Handley Middle School; nor why she did not discuss her complaint with 

her female assistant principal about whom she said: 

Q. With what frequency did you see the assistant principal at the 

school? 

A. It depends on if I subbed or not. If I subbed, I saw her on a 

daily basis. If I did not, I may not see her but once or twice a week. 

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Q. And the assistant principal is a female? 

A. Yes. 

Q. All right. Are you comfortable talking to the assistant principal 

about the matters that were happening between you and Mr. Cottle? 

A. Yes. 

Q. All right. And you would see this person with – the assistant 

principal with considerable regularity? 

A. Yes. 

Q. But you never mentioned these matters to the principal in 2003, 

2004, 2005; is that correct? 

A. Well, a couple of the years before that, it was not a female – 

Q. Right. But during the time the female was there, you never 

mentioned these matters to her, did you? 

A. Not directly. I just assumed she had heard it when she was in 

the other office. 

Q. All right. You assumed, but you never asked her about it? 

A. No. 

Q. And you never asked the secretary if she had reported it to the 

principal or the assistant principal? 

A. No, I did not ask her that. 

(Ex. 2, Price Depo. 32-34) 

Defendant asks the Court to enter judgment for Defendant as a matter of law based 

on the undisputed facts: as soon as the alleged harassment was brought to the 

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attention of the District it was effectively addressed. Given this response, 

Defendant School District should have no vicarious liability for what it had no 

prior knowledge about. 

A. DEFENDANT’S RESPONSE TO 

PLAINTIFF’S STATEMENT OF FACTS

1. Disputed. The Board’s policy manual is widely distributed for 

reasonable employee access: in the school library; in the principal’s offices; and at 

the central office. (Ex. 31

, Marcum Depo. 66, 69) There are at least eight copies of 

the Board’s policy manual in the schools and the central office. (Ex. 3, Marcum 

Depo. 70) Principal Foster kept two or three copies of the policy manual in his 

office at Handley Middle School where Plaintiff worked. (Ex. 4, Foster Depo. 11) 

 As a part-time crossing guard employee, Plaintiff works from 7 a.m. until 8 

a.m. directing traffic and from 2:30 p.m. to 3:30 p.m. (Ex. 2, Price Depo. 11-12) 

When Plaintiff worked as a full-time employee she attended the District’s Sexual 

Harassment program where the Board policy was discussed.. (Ex. 2, Price Depo. 

22; Ex. 3, Marcum Depo. 94) 

2. Disputed. The Board’s sexual harassment policy states: 

Any employee who feels he/she has been sexually harassed by another 

employee(s) or student(s) of the School District should present the 

complaint directly to the School District Title IX Coordinator or a 

person designated by the Superintendent. 

 

1 The exhibit references are to Defendant’s Evidentiary Submission filed contemporaneously 

with Defendant’s Motion for Summary Judgment. Defendant will not re-file the exhibits.

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The complaint should be filed as soon as possible after the incident or 

the latest occurrence if a series of incidents are involved. 

The employee should submit the report no later than forty-five (45) 

calendar days following the incident of the latest occurrence in the 

series of such incidents. 

(Emphasis supplied.) 

Plaintiff attended the District’s Sexual Harassment program in 1998 where the 

procedure was explained. (Ex. 3, Marcum Depo. 94) 

Greg Foster, Principal, and Robbie Benefield, Assistant Principal, were Plaintiff’s 

supervisors. (Ex. 3, Marcum Depo. 56, 85, 87, 92, 98) 

 Each employee who testified through depositions knew to report to their 

supervisor any sexual harassment complaint. (Ex. 16, Clarke Depo. 10; Ex. 7, 

Cottle Depo. 12; Ex. 20, Yarbrough Depo. 14; Ex. 12, Marshall Depo. 18; Ex. 17, 

Hunter Depo. 24; Ex. 18, Harmon Depo. 9; Ex. 19, Pollard Depo. 12; Ex. 5, 

Benefield Depo. 9) 

3. Denied. Every employee knew that they should report harassment to 

their supervisor. See answer 2, above. 

B. DEFENDANT’S REPLY TO 

PLAINTIFF’S ADDITIONAL DISPUTED FACTS

4. Admitted in part; disputed in part. Admit that this is Plaintiff’s 

contention. Disputed. (Ex. 7, Cottle Depo. 10-14) 

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5. Admitted in part; disputed in part. Admit that this is Plaintiff’s 

contention. Disputed. (Ex. 7, Cottle Depo. 10-14) 

6. Admitted in part; disputed in part. Admit that this is Plaintiff’s 

contention. Disputed. (Ex. 7, Cottle Depo. 10-14) Furthermore, Price made no 

complaint to any supervisor concerning complaints about Cottle in 2003-2004. 

Price inquired about the full policy manual of the Board in August of 2005, just 

before filing her complaint with the EEOC. (Ex. 2, Price Depo. 32, 45, 46) 

7. Admitted in part; disputed in part. Admit that this is Plaintiff’s 

contention. Disputed. (Ex. 7, Cottle Depo. 10-14) 

8. Admitted in part; disputed in part. Admit that this is Plaintiff’s 

contention. Disputed. (Ex. 7, Cottle Depo. 10-14) 

9. Disputed. (Ex. 2, Price Depo. 121, 127, 129) 

10. Admitted in part; disputed in part. Admit that this is Plaintiff’s 

contention. Disputed. (Ex. 7, Cottle Depo. 10-14) 

11. Admitted in part; disputed in part. Admit that this is Plaintiff’s 

contention. Disputed. (Ex. 7, Cottle Depo. 10-14) 

12. Admitted in part; disputed in part. Admit that this is Plaintiff’s 

contention. Disputed. (Ex. 7, Cottle Depo. 10-14) 

13. Admit that this is Plaintiff’s contention. Denied that this contention 

was seen or known by Defendant employees. 

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14. Admit that this is Plaintiff’s contention. Denied that this contention 

was seen or known by Defendant employees. 

15. Admit that this is Plaintiff’s contention. Denied that this contention 

was seen or known by Defendant employees. 

16. Admit that Plaintiff asserted this fact. 

17. Admit that Plaintiff asserted this fact. 

18. Admit that Plaintiff asserted this fact. 

19. Admit that Plaintiff asserted this fact. 

20. Admit that Plaintiff asserted this fact. 

21. Admit that Plaintiff asserted this fact. 

22. Admit that Plaintiff asserted this fact. 

23. Admit that Plaintiff asserted this fact. Plaintiff attended the School 

District’s Sexual Harassment seminar in 1998 when she was a full-time employee. 

Plaintiff knew to report complaints to her supervisor and did so. (Ex. 2, Price 

Depo. 22, 30) 

24. Admitted in part; disputed in part. See answer to 23, above. 

25. Admit as Plaintiff’s contention. 

26. Admit as Plaintiff’s contention. Disputed in part. Plaintiff knew from 

attending the Sexual Harassment seminar in 1998 to report complaints to her 

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supervisor. Plaintiff reported a complaint in 1998 to her supervisor. It was 

immediately corrected. (Ex. 2, Price Depo. 22, 30) 

27. Disputed. Plaintiff knew how to report a complaint in 1998. Plaintiff 

reported a complaint in 1998 to her supervisor. The problem was corrected. (Ex. 

2, Price Depo. 22, 30) 

28. Admit as Plaintiff’s contention. Denied based on Plaintiff’s action in 

1998 where she knew to report a complaint to her supervisor and she did in fact 

make a complaint to her supervisor. (Ex. 2, Price Depo. 22, 30) 

29. Admit as Plaintiff’s contention. Disputed in part. Plaintiff did not 

complain during the 2003-2004 school year about Cottle’s conduct occurring 

during that year; nor did Price complain in 2004-2005 about Cottle’s conduct 

during that year. Nor did Price seek copies of the Board’s policy manual during 

2003-2004, 2004-2005. Price did not seek copies of the policy manual during 

those two years about which she now complains. Plaintiff made no complaint to 

any supervisor in 2003-2004 or 2004-2005 as she had done in 1998. 

 Plaintiff in August 2005 – just before filing her EEOC complaint2

 – asked to 

see a copy of the District’s Policy Manual. Price did not ask for a copy of the 

sexual harassment policy. She asked about the District’s policy manual. (Ex. 15, 

Martin Aff. 1) 

 

2 Plaintiff talked to her attorney about her complaints in August 2005. Price then asked about the 

Board policy manual. (Ex. 2, Price Depo. 46, 59) 

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30. Admitted in part. Plaintiff asked for the Board policy manual. 

Plaintiff did not ask specifically for the sexual harassment policy. (Ex. 2, Price 

Depo. 119) Plaintiff did not ask her principal to see the copy at her school. (Ex. 2, 

Price Depo. 45-47) Price had a copy of the Student Handbook and had seen the 

sexual harassment policy in that. (Ex. 2, Price Depo. 120) 

 Plaintiff did not inquire in 2003-2004 or 2004-2005 about the policy. 

Plaintiff kept notes about Cottle. (Ex. 2, Price Depo. 20) Plaintiff did not bring 

these matters to the attention of a supervisor in 2003 or 2004 or the spring of 2005. 

(Ex. 2, Price Depo. 45, 47) 

RESPONSE TO ARGUMENT

 Plaintiff Price admits that the Defendant Board took immediate action to 

address her current problem as soon as it was brought to the attention of her 

supervisor. (Ex. 2, Price Depo. 124) 

 Plaintiff Price admits that in 1998 that the Board took effective action to 

address her complaint when she reported her complaint to her supervisor. 

 Plaintiff admits that she knew to bring any complaint of sexual harassment 

to her supervisor in 1998. 

 Plaintiff claims that in August 2005, she did not know who her supervisor 

was and so did not complain to any administrator. 

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DEFENDANT’S POSITION

 Defendant asks the Court to review the totality of circumstances in assessing 

whether Plaintiff acted reasonably. 

 First, Plaintiff knew in the past to report her complaint to a supervisor. She 

did and it was taken care of. 

 Second, Plaintiff asks the Court to accept an “Emperor’s New Clothes” 

argument.3

 Plaintiff worked in a small middle school. She was in the school’s 

central office almost on a daily basis. The school has a principal and female 

assistant principal who were in the small central office on a daily basis, making 

decisions, talking to employees, students and others. 

 Plaintiff would like the Court to assume that she worked at the United States 

Pentagon along with thousands and thousands of employees and hundreds and 

thousands of ranking supervisors. With such a maze as the Pentagon, Plaintiff’s 

argument – did not know her supervisor – might have some credibility. 

 At Handley Middle School, it does not. 

 To argue to this Court that she did not know the supervisor at her school is 

absurd. 

 Plaintiff saw her supervisors every day – or almost every day. 

 

3 The Emperor’s clothes were not new, but the assertions were offered nonetheless to the naïve 

emperor. Plaintiff asks the Court to believe the incredible: that she did not know who were the administrative 

supervisors at her school. 

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 Plaintiff admitted she was interviewed for her position of employment at the 

school by the principal. (Ex. 2, Price Depo. 14.) 

 Plaintiff admitted she reported to the assistant principal. (Ex. 2, Price Depo. 

15) The assistant principal Robbie Benefield is a female supervisor. 

 As the Court assesses whether Plaintiff gave the Board fair notice and an 

opportunity to respond, the Court will, hopefully, assess the specific context within 

which she worked: the small school environment. 

 Plaintiff “constructs” technical arguments to exempt her from the 

responsibility to report her complaints to her employer so that her complaint could 

have been addressed and have been resolved in a timely manner – without claims 

of damages and attorney fees. 

 Plaintiff claims the harassment started in 2003. That year -- 2003 -- was not 

too long after she attended a sexual harassment program; knew to report 

harassment to her supervisor; and did so with effective response. 

 Reporting her complaint in 1998 to a supervisor was not apparently 

satisfactory in one respect. The problem was solved to be sure, but she could not 

claim damages, costs and fees. With this lawsuit, Plaintiff tries to avoid that 

outcome. 

 Instead she admits she kept notes about what was happening. (Ex. 2, Price 

Depo. 22) She admits she tried to tape conversations. (Ex. 2, Price Depo. 65-66) 

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 Did she report what was happening in 2003? 

 No. 

 Did she report what was happening in 2004? 

 No. 

 In August of 2005, she did inquire about the full Board policy manual. 

During that summer, it was being revised. In August of 2005 she hired an 

attorney. (Ex. 2, Price Depo. 46) She asked at the central office for a copy of the 

full Board policy manual. 

 Did she ask, “Well, could I see the sexual harassment section of the 

manual?” 

 No. 

 Did she ask at her own school – the secretary, the assistant principal or 

principal – for the school copy of the Board policy? 

 No. 

 Defendant Board of Education asks whether the facts really show that 

Plaintiff has acted in good faith toward her employer – or merely constructed a 

clever case. 

 The law is clear that a Board can be liable for sexual harassment if it knows 

about sexual harassment and does nothing. 

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 In this case, no supervisor knew about the alleged harassment. At best, a 

school secretary might have had some knowledge.4

 And Price admits she never 

asked the school secretary what she should do or whom to report. (Ex. 2, Price 

Depo. 41) 

 Not knowing anything about the contentions, Defendant could not react in 

2003 to eliminate any problem; or in 2004; or in the spring of 2005. 

 By working over time to “put together” a case, Plaintiff disserved her 

employer and defaulted under her responsibility as a matter of law. 

 Defendant would emphasize one important assertion: When Plaintiff 

reported a problem in 1998, it stopped; when Plaintiff brought her complaint in 

2005 to the attention of her supervisors, it stopped. 

 Defendant respectfully submits that the case law regarding peer sexual 

harassment clearly mandate an obligation on an employee to bring a sexual 

harassment complaint to the employer’s attention to provide the employer the 

opportunity to address the problem before spending thousands of dollars on 

litigation costs. 

CASE LAW

 In Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998), the United 

States Supreme Court stated that an employer may assert an affirmative defense if: 

 

4

 The secretary Rosemary Marshall states unequivocally in her affidavit (Ex. 12) that Price is fabricating her 

contentions. (Ex. 12 is attached hereto as Appendix A.) 

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(a) the employer exercised reasonable care to prevent and correct 

promptly any sexually harassing behavior; and 

(b) the plaintiff employee unreasonably failed to take advantage of any 

preventive or corrective opportunities provided by the employer or to avoid 

harm otherwise. 

In this case, Plaintiff knew and demonstrated her knowledge to report a sexual 

harassment complaint to her supervisor. When she did, it was corrected. But 

Plaintiff chose not to bring her complaints about Cottle to her employer. Instead 

she asks the Court to allow her to seek damages and costs against this small school 

system. 

 Plaintiff admits she did not give notice to a supervisor. She essentially lied 

to the EEOC that her assistant principal knew about the allegations. She said in 

her EEOC complaint: 

I have complained to teachers at the school, the secretary, the 

counselor, and the assistant principal about this but nothing has been 

done. 

(Ex. 8, EEOC Complaint) 

Now Plaintiff tells the Court that the assistant principal was in the general area of a 

conversation regarding Cottle: 

Q. Did you ever go to the assistant principal to complain? 

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A. Not to her office, but she was standing in the general central 

area of the office and overheard comments. She says she does not 

remember them, that she was standing there and heard them. 

Q. Well, do you have any reason to believe that she would not tell 

the truth? 

A. No, sir. 

Q. So if she says she didn’t hear you make a complaint, would you 

accept that was true? 

A. I will accept that. She may not have heard it and I’m not saying 

she did. 

Q. So would it be true then prior to you filing the complaint, as far 

as you know, neither the principal of your school, nor the assistant 

principal had any knowledge of your problems with Mr. Cottle? 

A. That’s safe to assume. 

(Ex. 2, Price Depo. 28-29) 

Q. You indicate that you complained to the assistant principal. Who 

was the assistant principal that you complained to? 

A. That was Robbie Benefield. That was the comments being made 

in front of the office. I assumed she heard. 

Q. All right. Here you're telling the EEO that you went to the 

assistant principal and complained, that wouldn't be true, would it? 

A. Not a direct complaint. 

Q. You never went to the assistant principal with a direct complaint, 

did you? 

A. No. 

Q. She may have been in the vicinity when you were talking with 

other people, but that's the closest you came to sharing with the 

assistant principal your concern about Cottle; would that be right? 

A. Yes. 

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Q. And you say, but nothing has been done. Did you expect or ever 

ask the teachers to do something about Cottle? 

A. Not them personally, no. 

Q. Did you ever ask the school secretary to do something about 

Cottle? 

A. Not a direct -- no. 

Q. Did you ever ask the counselor in '03 to do something about 

Cottle? 

A. No. 

Q. Did you ever ask the assistant principal to do something about 

Cottle? 

A. No. 

Q. So you never asked them to do anything about Cottle? 

A. No. 

Q. But as soon as this was brought to the attention of the 

superintendent, principal, and assistant principal, they did something 

about it? 

A. Yes. 

(Ex. 2, Price Depo. 106-108.) 

 In Arnold v. Tuskegee University, 212 Fed. Appx. 803, 218 Ed. L.R. 170, 

176 (11th Cir. 2006), the Eleventh Circuit analyzed whether an employee met her 

burden to establish vicarious liability. In that case, the Court found that Plaintiff 

Arnold failed to take advantage of any preventive or corrective opportunities to 

avoid harm. 

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 Arnold’s situation was comparable to Price’s situation in this case in that 

Arnold “had personal knowledge and prior successful utilization of Tuskegee’s 

anti-harassment policy.” 

CONCLUSION

 Plaintiff admits that a complaint to her supervisor had effectively remedied a 

problem in the past. 

 Plaintiff asks the Court to exempt her from reporting her complaint in 2005 

on the basis that she did not know for sure who to report her complaint to. 

 If the Court does exempt her from the responsibility to give her employer 

fair and reasonable notice, then she hopes she can collect damages, costs and fees 

against this small school district. 

 Defendant asks the Court to enter summary judgment in light of the 

undisputed fact that the alleged harassment stopped immediately after it was 

brought to the attention of the school supervisors. 

 Where there is no evidence of “flagrant insensitivity” or “deliberate 

indifference” to known facts of sexual harassment, Defendant Roanoke City Board 

of Education respectfully asks the Court to enter judgment for Defendant as a 

matter of law. 

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 s/Donald B. Sweeney, Jr. 

DONALD B. SWEENEY, JR. 

(SWE002) 

OF COUNSEL

Bradley Arant Rose & White LLP

One Federal Place 

1819 Fifth Avenue North 

Birmingham, AL 35203-2119 

Telephone: (205) 521-8000 

Facsimile: (205) 521-8800 

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CERTIFICATE OF SERVICE

I hereby certify that on August 29, 2007, I electronically filed the 

foregoing with the Clerk of the Court using the CM/ECF system which will send 

notification of such filing to the following: 

Adam M. Porter, Esq. 

2301 Morris Avenue, Suite 102 

Birmingham, AL 35203 

and I hereby certify that I have mailed by United States Postal Service the 

document to the following non-CM/ECF participants: 

NONE 

Respectfully submitted, 

s/ Donald B. Sweeney, Jr. 

Donald B. Sweeney, Jr. (ASB-3803-

W77D) 

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