1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

LILLIE MIMS, et al., )

Plaintiffs, )

 )

v. ) CIVIL ACTION 13-00643-KD-M

 ) 

MONROE COUNTY BOARD OF )

EDUCATION, et al., )

Defendants. )

ORDER

This matter is before the Court on Defendants’ Motion for Summary Judgment as to 

Plaintiff Mims (Docs. 27, 40), Mims’ Response (Doc. 54) and Defendants’ Reply (Doc. 56).

I. Findings of Fact1

Plaintiff Lillie Mims (Mims), an African-American female, was employed in 2014 by the 

Monroe County Board of Education (School Board) at J.F. Shields High School (Shields).

In 2011, Kathy Murphy (Murphy) became Superintendent, serving as the Chief Executive 

Officer and Secretary of the School Board, overseeing the day-to-day operations of the school 

system and making recommendations to the School Board concerning various matters including 

personnel decisions. (Docs. 32-2 (Aff. Murphy); 39-10). According to Murphy, her goals and 

plans for the school system included continuously planning for school and district-wide 

improvement and to have well-prepared, capable and dedicated faculty and staff throughout the 

district. (Id.) Two (2) schools were closed and many employees were shuffled to provide, 

according to Murphy, a more effective educational experience for students. (Id.)

 1 At the summary judgment stage, the facts are taken in the light most favorable to the non-movant. Tipton 

v. Bergrohr GMBH–Siegen, 965 F.2d 994, 998-999 (11th Cir. 1992). The “facts, as accepted at the summary 

judgment stage of the proceedings, may not be the actual facts of the case.” Priester v. City of Riviera Beach, 208 

F.3d 919, 925 n. 3 (11th Cir. 2000).

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On March 30, 2012, Murphy held a meeting with directors, some principals, assistant 

principals and various central office personnel, to discuss ideas for realigning personnel based on 

the needs of the school system and budgetary restraints. (Id.) Mims attended the meeting and 

was allowed to give input on the decisions that were to be made. (Doc. 39-10). As part of her

plan, Murphy wished to improve the quality of education for the students assigned to the Monroe 

County C.P. Carmichael Alternative School (Alternative School) by providing meaningful 

instruction so when the students retuned to the regular classroom setting, they would be current 

on their class work. (Docs. 32-2 (Aff. Murphy); 39-10). Additionally, as of the date of this 

meeting, the school system had nine (9) assistant principals but had only “earned” 4.5 principals; 

thus, one of the goals was to eliminate and shift assistant principals. (Doc. 39-10). Of the nine 

(9) assistant principals, four (4) were non-tenured and their contracts were not renewed. (Id.) 

Mims was tenured in one-half of an assistant principal’s position (one-half of her duties were

related to the position of assistant principal); she also served as a counselor. (Id.)

In May 2012, Murphy informed Mims that she would recommend her transfer – from the 

position of assistant principal/counselor at Shields to assistant principal/counselor at the 

Alternative School – to the School Board. (Doc. 39-10). In response, Mims notified Murphy 

that she would be contesting the transfer. Mims’ attorney later made several requests to Murphy 

regarding the transfer, including a request for clarification of Mims’ duties, responsibilities and 

job title. (Doc. 35-5). Murphy agreed with some of these requests and responded via letter to 

counsel on June 6, 2012, and Mims consented to the transfer. (Doc. 35-6; Doc. 39-10).

Thereafter, on June 7, 2012 Murphy recommended Mims’ transfer to the School Board, which 

voted and approved same. (Doc. 35-7 at 3-4). None of the individual members of the School 

Board believed or had reason to believe the transfer recommendation was based on race. (Docs. 

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28-1 to 28-5 (Affs. Powell, Dean, Jordan, Black, Lett)). With the transfer, Mims received no cut 

in pay or position. (Doc. 39-10 at 4).

Murphy delineated the reasons Mims was transferred: 1) having an a counselor at the 

school would provide a much needed component at a school site that served students who were 

already having troubles, whether academic, personal or both; 2) Murphy received several 

community and parent requests that Mims not remain at Shields; and 3) Mims’ transfer was 

based upon the needs of the school district as a whole and the specific needs at the Alternative 

School. (Doc. 39-10).

Mims initiated this litigation on December 30, 2013, suing the School Board, Murphy,

and individual members of the School Board,

2 alleging Title VII and Section 1981/1983 race 

discrimination (discriminatory transfer), retaliation, and hostile work environment. (Doc. 18 at 

1-2, 5-8). Mims’ Complaint alleges four (4) counts for: 1) First Cause of Action -- “Employment 

Discrimination: Title VII, Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq”; 2) 

Second Cause of Action -- “Employment Discrimination: Retaliation”; 3) Third Cause of Action 

– “Equal Protection, 14th Amendment as enforced by Sections 1981”; and 4) Fourth Cause of 

Action -- “Equal Protection, 14th Amendment as enforced by Section 1983 Claim.” (Doc. 18 at 

9-12). Mims’ allegations consist of the following:

3

....Plaintiff avers that she has been the victim of unlawful employment discrimination, 

including, but not limited to, her transfer from J.F. Shields High school to C.P. 

Carmichael Alternative School...Plaintiff Mims was an assistant principal at J.F. Shields. 

Despite the representation that Plaintiff Mims was being transferred to the same position 

 2 Suing Murphy in her individual capacity for Section 1981 and 1983 violations; and suing Tony Powell, 

Barbara Dean, Martha Jordan, Patricia M. Black and Richard R. Lett, members of the School Board, in their 

individual capacities for Section 1981 and 1983 violations. (Doc. 18 at 3). 

3 While the Complaint suggests that Mims endeavors to “adopt and incorporate” all prior paragraphs and 

factual allegations (apparently including those of co-plaintiff Turner), she cannot assume Turner’s specific 

paragraphs/allegations as her own because such “me too” evidence is not permissible in this case. Moreover, the 

practice of “adopting and incorporating by reference” is disfavored in this Court.

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of assistant principal and counselor, it is not true as her duties and responsibilities were 

different....she has been severely degraded in that the Alternative School is for students 

with disciplinary and behavioral transgressions who have been removed from their 

regular student body. At the Alternative School the plaintiff avers that she was relegated 

to the rank of a teacher, assigned teaching duties and responsibilities as opposed to 

administration. The principal assigned to the Alternative school is Larry Woolfolk and 

the plaintiffs are the designated teachers. Mims avers that the defendants MCBOE and its 

various members acted on the recommendation of the superintendent, whose actions were 

punitive, discriminatory and retaliatory against the plaintiffs. Unlike other assistant 

principals in Monroe County, plaintiff avers that she was not allowed to have a key to the 

school after her transfer to C.P. Carmichael Alternative School. Not having a key during 

the month of August, 2012, thus she had to rely on the schedule of the principal’s 

secretary in determining when she could enter and leave the building. The 

Superintendent, defendant Dr. Murphy, directly questioned plaintiff Mims for not 

attending a couple of off campus meetings, even though she knew that the plaintiff could 

not leave the Alternative School building unlocked since she was the only one there at the 

time. This is just one example of how...the defendants have made it purposely more 

difficult for her [since] the filing of the original charge of discrimination.

On August 6, 2012, Plaintiff Mims alleges that Superintendent Murphy denied her the 

position of grant director for the 21st Century Community Learning Center. This 

happened even though Mr. Larry Turner, principal of J.F. Shields High School, 

recommended her retention as director for the grant, especially since the grant was 

originally written by the plaintiff....the adverse employment actions of Dr. Murphy and 

the Monroe County Board of Education in dismissing her as grant director for the 21st 

Century Community Learning Center are consistent with the pattern and practice of racial 

animus, discriminatory conduct and hostile work environment she has been subjected to. 

The Defendants have continued to make every effort to discredit and embarrass the 

plaintiffs amongst their peers, removing them from any position of actual responsibility 

and administrative duties relative to their placement at...Alternative School.

... even though on paper her job title is that of assistant principal and counselor, she has 

been demoted and relegated to simply a teacher of unruly students who have been 

removed from their student body for disciplinary reasons and placed in Alternative 

School. Her responsibilities have been severely degraded as she is compelled to 

accomplish job duties and responsibilities normally assigned to only teachers. These 

duties are thrust upon her as a direct and proximate cause of her having filed the charge 

of discrimination with the EEOC and are meant to punish and demean her and discredit 

her reputation in front of her peers. Plaintiff shows the court that on August 8, 2012, Amy 

McCrory, Director of Curriculum and Instruction, confronted her about a conference and 

informed her that she was required to come back to the afternoon session of a workshop. 

The plaintiff had already attended the morning session designed for administrators, but 

was told she had to go back to the afternoon session, (after she had left), even though[]

that session was meant solely for teachers. Indeed, the plaintiff avers that she could not 

have attended the afternoon session because she was the only one at the Alternative 

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School at the time and would not have been able to have left without leaving the building 

unlocked. The Alternative School is a staffed by what can be best described as a skeletal 

personnel crew. Nonetheless, the plaintiff attended the morning workshop after seeing an 

email from Mrs. McCrory, specifically informing them that counselors would find the 

morning information helpful, and that they could slip out of the workshop after that 

session. Notably, Sandy Bell, a white counselor, was never questioned about her lack of 

attendance to the afternoon session. On another instance, specifically August 16, 2012, 

Dr. Murphy questioned the plaintiff about not attending the Renaissance Learning 

Training workshop on August 13-14, 2012. The plaintiff was the only assistant principal 

and/or counselor required to attend that workshop in the entire county. The workshop was 

designed for teachers using the Renaissance Learning program. Dr. Murphy confronted 

the plaintiff about her lack of attendance at the workshop even though she had signed the 

plaintiff’s sick leave form for those days prior to the commencement of the workshop....

(Doc. 18 at 5-8).

II. Standard of Review

“The court shall grant summary judgment if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED.

R. CIV. P. 56(a) (Dec. 2010). Rule 56(c) provides as follows:

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is 

genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including 

depositions, documents, electronically stored information, affidavits or 

declarations, stipulations (including those made for purposes of the motion only), 

admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or 

presence of a genuine dispute, or that an adverse party cannot produce admissible 

evidence to support the fact.

(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party 

may object that the material cited to support or dispute a fact cannot be presented 

in a form that would be admissible in evidence.

(3) Materials Not Cited. The court need consider only the cited materials, but it 

may consider other materials in the record.

(4) Affidavits or Declarations. An affidavit or declaration used to support or 

oppose a motion must be made on personal knowledge, set out facts that would be 

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admissible in evidence, and show that the affiant or declarant is competent to 

testify on the matters stated. 

FED.R.CIV.P. Rule 56(c) (Dec. 2010). The party seeking summary judgment 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.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (quoting 

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the nonmoving party fails to make “a 

sufficient showing on an essential element of her case with respect to which she has the burden 

of proof,” the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. “In 

reviewing whether the nonmoving party has met its burden, the court must stop short of 

weighing the evidence and making credibility determinations of the truth of the matter. Instead, 

the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in 

his favor.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998-999 (11th Cir. 1992) (internal 

citations and quotations omitted).

III. Conclusions of Law

At the outset, Mims has failed to provide specific citations to the evidence to support her 

claims, despite the Court’s prior instructions. (Doc. 49). Instead, Mims cites evidence generally, 

without any specificity as to that upon which she relies (e.g., “Murphy’s Depo; Board Members 

deposition: Dean, p. ; Lett, p. Powell, p.[,]” “See her EEOC Exhibits, Affidavits and excerpts of 

Deposition testimony of how she was treated different...”). (Doc. 54 at 2, 11). In this sense, 

Mims wholly fails to discuss (and show support for) how she was discriminated against. Instead 

she simply points to a series of exhibits in general and then directs the Court to discover the 

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evidence for her. A party may not, by the simple dumping of a mass amount of evidentiary 

material into the record, shift to the Court the burden of identifying evidence supporting its 

position. The same holds true for Defendants who, while submitting 101 exhibits comprising 

approximately 1,270 pages (without delineation between Turner and Mims) (Docs. 28-39, 44), 

only cite to 18 exhibits for Mims. Accordingly, the Court’s review is limited to those portions of 

the submitted materials to which the parties have expressly drawn the Court’s attention with 

specific citation.

4 The Court has thus not considered those exhibits referenced generally (without

any page or paragraph citation), as it is not the undersigned’s task to use its resources to ferret 

out evidentiary support for the parties on summary judgment. 5

A. Section 1981 claims: Third Cause of Action - “Equal Protection, 14th

Amendment as enforced by Section[] 1981”6

As alleged, defendants Murphy and the individual board members are state actors insofar 

as they are government officials “acting under color of [state] law.” “Section 1981 does not 

provide a cause of action against state actors; instead, claims against state actors or [sic] 

allegations of § 1981 violations must be brought pursuant to § 1983.” Baker v. Birmingham Bd. 

of Ed., 531 F.3d 1336, 1337 (11th Cir. 2008) (citing Butts v. County of Volusia, 222 F.3d 891, 

 4 As illustration, for Mims this means that her evidence considered on summary judgment consists of two 

(2) paragraphs from her affidavit, a paragraph from Larry Turner’s Affidavit, and approximately 30 combined pages 

from her own depositions and the depositions of individual board members Tony Powell, Barbara Dean and Patricia 

M. Black, and Superintendent Kathy Murphy.

5 “There is no burden upon the...court to distill every potential argument that could be made based upon 

the materials before it on summary judgment.” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 

1995). It is not the duty of the Court to scour the record to find specific references and places the parties may deem 

relevant. “Judges are not like pigs, hunting for truffles buried in briefs.” United States v. Dunkel, 927 F.2d 955, 956 

(7th Cir. 1991). See also e.g., Mathis v. Kerry, 2014 WL 793996, *1 (M.D. Ga. Feb. 27, 2014) (that “judges have no 

duty to scour the file in search of evidence is an obvious corollary to the requirement that parties specifically 

identify the portions of the...file which support their assertions regarding whether genuine issues remain for trial[]”). 

6

 While Mims references Section 1983 within this cause of action, such appears to be an error as this claim 

is raised under Section 1981 and mirrors the Section 1981 claim raised by Turner (Doc. 18 at 13). 

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892-894 (11th Cir. 2000)). See, e.g., Cotton v. Polk Cty. Bd. of Cty. Com’rs, 2015 WL 1020634, 

*1 (M.D. Fla. Mar. 9, 2015); Betts v. Conecuh Cty. Bd. of Ed., 2014 WL 7411670, *5-7 (S.D. 

Ala. Dec. 30, 2014); Hamilton v. Montgomery Cty. Bd. of Ed., 122 F.Supp.2d 1273, 1279 (M.D. 

Ala. 2000). As such, the Court merges Turner’s Section 1981 count into her Section 1983 count, 

DISMISSING the “Third Federal Cause of Action” (Doc. 18 at 11) against these defendants, as 

a matter of law. Jett v. Dallas Ind. Sch. Dist., 491 U.S. 701, 733 (1989) (Section 1983 “provides 

the exclusive federal damages remedy for the violation of the rights guaranteed by § 1981 when 

the claim is pressed against a state actor[]”)); McMillan v. Fulton Cty., Ga., 352 Fed. Appx. 329, 

330 at n. 1 (11th Cir. 2009) (there is no liability under section 1981 in cases involving state actors 

as such claims merge into the Section 1983 claims).

B. Section 1983 claims: Fourth Cause of Action – “Equal Protection, 14th

Amendment” as enforced by Section 1983 

In the Complaint Mims asserts Section 1983 claims for “Equal Protection, 14th

Amendment” against Murphy and the board members in their individual capacities, for hostile 

work environment, retaliation, and race discrimination (discriminatory transfer). (Doc. 18 at 12). 

While inartfully pled, it appears that Turner alleges that these defendants violated her 

equal protection rights because she was transferred as part of a “custom and policy” on the part 

of Murphy and the individual board members, of transferring African American employees to 

the Alternative School but not Caucasian employees. (Id. at 12 at ¶26). 

Section 1983 provides, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of 

any State or Territory or the District of Columbia, subjects, or causes to be subjected, any 

citizen of the United States or other person within the jurisdiction thereof to the 

deprivation of any rights, privileges, or immunities secured by the Constitution and laws, 

shall be liable to the party injured in an action at law, suit in equity, or other proper 

proceeding for redress ....

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To establish a Section 1983 claim, Mims must show a violation of a right secured by the 

Constitution of the United States, and that the deprivation of that right was committed by a 

person acting under color of state law. Cummings v. DeKalb Cty,, 24 F.3d 1349 (11th Cir. 

1994). Section 1983 does not provide substantive rights, but merely “a method for vindicating 

federal rights elsewhere conferred.” Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979). 

1. Hostile Work Environment7

Mims alleges Section 1983 hostile work environment against Murphy and the board 

members in their individual capacities, per the “Fourteenth Amendment” and “equal protection 

of the law.” (Doc. 18 at 1-2, 12). Mims’ claim is rooted in the following purported acts: 

• She was transferred and demoted to the Alternative School and was thus “degraded” as 

she was relegated to teacher duties/responsibilities rather than administrative

• Unlike other assistant principals she was not allowed by the defendants to have a key to 

the school after her transfer which caused her to miss off campus meetings, “purposely” 

making it “more difficult for her”

• August 6, 2012, Murphy denied her the 21st Century Community Learning Center grant 

director position even though Shields principal Larry Turner recommended her

• defendants discredit and embarrass Mims among her peers, removing her from any 

position of actual responsibility and administrative duties

• August 8, 2012, Amy McCrory, Director of Curriculum and Instruction, confronted her 

about a conference and informed her that she was required to attend. However, Sandy 

Bell, a white counselor, was never questioned about her lack of attendance

 7 With regard to Mims’ hostile work environment claim, this is not a class action and the Complaint does 

not allege “pattern and practice” for her allegations (despite Defendants briefing of this issue on summary judgment). 

EEOC v. Joe’s Stonecrab, Inc., 220 F.3d 1263, 1286-1287 (11th Cir. 2000) (distinguishing pattern and practice 

claims from others, suggesting such claims may only be brought by the EEOC or a class of private plaintiffs).

Moreover, Mims cannot rely upon and/or base her hostile work environment claim on any evidence of the 

other co-plaintiff’s experiences. See, e.g., Brown v. Berg Spiral Pipe Corp., 2011 WL 3610646, *14 (S.D. Ala. Aug. 

17, 2011). Support for Mims’ discrimination case can only be based on evidence regarding her specific experiences 

or that which she became aware of while employed. This is because “[t]o rely on the evidence, each [plaintiff] must 

show that he was aware of those incidents at the relevant time he alleges the hostile work environment.” See, e.g., 

Melton v. National Dairy, LLC, 705 F.Supp.2d 1303, 1342 (M.D. Ala. 2010) (citing Edwards Wallace Comm. 

College, 49 F.3d 1517, 1522 (11th Cir. 1995)) (emphasis in original). See also e.g., Head v. Pitts Enterp., Inc., 2010 

WL 2773376, *8 (M.D. Ala. Jul. 14, 2010); McKenzie v. Citation Corp., LLC, 2007 WL 1424555, *13 (S.D. Ala. 

May 11, 2007). Courts in the Eleventh Circuit may consider statements not directed at a plaintiff and even hearsay 

statements, so long as the plaintiff was aware of the statements at the time he was employed. See, e.g., Yeomans v. 

Forster and Howell, Inc., 2010 WL 3716394, *5-6 (M.D. Ala. Sept. 10, 2010). 

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• August 16, 2012, Murphy questioned Mims about not attending the Renaissance 

Learning Training workshop on August 13-14, 2012, even though she had signed Mims’

sick leave form for those days prior to the commencement of the workshop.

(Doc. 18 at 5-7).

Racial harassment is actionable where the conduct is sufficiently severe or pervasive to 

alter the conditions of employment and create an abusive working environment. Freeman v. City 

of Riverdale, 330 Fed. Appx. 863, 865 (11th Cir. 2009). To establish a prima facie case of hostile 

work environment and/or racial harassment, the plaintiff must prove that: 1) he belongs to a 

protected group; 2) he has been subject to unwelcome harassment; 3) the harassment was based 

on a protected characteristic of the employee (such as race); 4) the harassment was sufficiently 

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

abusive working environment; and 5) the employer is responsible for such environment under a 

theory of vicarious or direct liability. See, e.g., Reeves v. DSI Sec. Servs., Inc., 395 Fed. Appx. 

544, 545–546 (11th Cir. 2010); McCann v. Tillman, 526 F .3d 1370, 1378 (11th Cir. 2008); Miller 

v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002); Mendoza v. Borden, Inc., 

195 F.3d 1238, 1245 (11th Cir. 1999). To be actionable as severe or pervasive, harassment “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.” Miller, 277 F.3d at 1276 

(internal citation and quotation marks omitted). In other words, the severe or pervasive element 

has an objective and subjective component. McCann, 526 F.3d at 1378. To determine objective 

severity, courts look at the totality of the circumstances and consider: 1) the frequency of the 

discriminatory conduct; 2) the severity of the conduct; 3) whether the conduct is physically 

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

unreasonably interferes with an employee's job performance. Reeves, 395 Fed. Appx. at 546. 

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See also Faragher v. City of Boca Raton, 524 U.S. 775, 787-788 (1998); Allen v. Tyson Foods, 

121 F.3d 642, 647 (11th Cir. 1997) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). 

“The conduct is considered cumulatively instead of in isolation.” Reeves, 395 Fed. Appx. at 546.

As to the first element, the parties do not dispute that Mims belongs to a protected group 

– African American. As to the second element, given Mims’ allegations and viewing the factors 

in the light most favorable to her on summary judgment, the Court will assume Mims was 

subject to unwelcome harassment. 

Regarding the third element, Mims must establish that the harassment by these

defendants was based on a protected characteristic – her race. This she has failed to do. The 

only evidence in the record concerning this element consists of Mims’ conclusory and 

unsupported statements, speculation and beliefs that Murphy was racist and/or acted with race in 

regards to Mims, and that the individual board members somehow “rubber stamped’ this 

behavior by voting to transfer (demote) Mims to the Alternative School. See, e.g., Satchel v. 

School Bd. of Hillsborough Cty., 251 Fed. Appx. 626, 630 (11th Cir. 2007) (concluding the 

plaintiff failed to satisfy the third element when “the behavior she observed and experienced did

not consist of any racially derogatory statements or acts” and merely evinced a belief that a

coworkers was racist and the school system was affected by institutional racism).8

Specifically, Mims has submitted no evidence of discriminatory comments, racial 

epithets, veiled racial remarks, or any actions based on race by Murphy and/or the individual 

board members. Indeed, Mims has provided no evidence that any actions or treatment were 

based on her race, or that her treatment by Murphy had any racial component. Rather, Mims’ 

 8 An unsupported assertion does not create the requisite genuine issue of material fact to survive summary 

judgment. Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985) (“This court has consistently held that 

conclusory allegations without specific supporting facts have no probative value.”)

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allegations are based on her own speculative assumptions.

Further, there is no evidence, of any sort, that any of the individual board members 

engaged in any racially motivated actions as to Mims. Indeed, Mims has not shown that the 

individual board members’ approval (described as a “rubber stamp”) of her transfer was racially 

motivated or that race was a factor. And that act – voting to approve the transfer – is the sum 

total allegation of discrimination leveled against the individual board members. 

The same holds true to any claim by Mims that there existed a custom and policy of 

discrimination – there is no evidence of such by any of the defendants. Only Mims unsupported 

conclusory allegation.

Thus, Mims has failed to establish that any of the alleged acts on the part of Murphy,

and/or the individual board members, were based on race or even traceable to her race. Moore v. 

Jimmy Dean/Sara Lee Foods, Inc., 520 F.Supp.2d 1359, 1363 (N.D. Ala. 2007). “Without an 

evidentiary basis, finding harassment on the basis of...race is impossible since the Court has 

nothing to evaluate.” Aaron v. Board of Regents of Univ. Sys. of Ga., 58 F.Supp.3d 1368, 1382 

(M.D. Ga. 2014) (citing Mendoza v. Borden, Inc., 195 F.3d 1238 (11th Cir.1999); see also 

Wheatfall v. Board of Regents University System of Georgia, 9 F.Supp.3d 1342 (N.D.Ga.2014) 

(Noting that in reviewing a hostile work environment claim ‘without specifics ... a hypothetical 

reasonable person has nothing to evaluate.’). The Record before the Court is wholly inadequate 

to establish a claim for hostile work environment[]”).9 In sum, when viewing the facts in the 

light most favorable to Mims, a reasonable jury could not find that the purportedly harassing 

 9 See also e.g., Jones v. Mabus, 2013 WL 4662821, *5 (M.D. Ga. Aug. 29, 2013) (“While the record 

demonstrates ample evidence of impolite, rude, and insensitive behavior on the part of Jones, the evidence does not 

reflect that there were any racial...components to Jones's particular brand of “management.” The facts reflect that 

Jones treated all employees in an intolerable manner, behavior that ultimately led to his discharge. Thus, aside from 

her unsupported assertion that she was discriminated against based on race..., Plaintiff has failed to present evidence 

showing that Jones's conduct constituted harassment motivated by her race...”).

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conduct was based on race. Moreover, the conduct complained of was neither severe or 

pervasive. Defendants’ motion on this claim is GRANTED.

2. Disparate Treatment: Discriminatory Transfer

Mims alleges Section 1983 race discrimination (discriminatory transfer) against Murphy 

and the board members in their individual capacities, relying upon the “Fourteenth Amendment” 

and “equal protection of the law.” (Doc. 18 at 1-2, 12). Mims’ equal protection race 

discrimination claim is that Murphy and the individual defendants discriminatorily transferred

her from Shields to the Alternative School (“demoted” her) based on her race. Mims alleges that 

she was not transferred to the same position (assistant principal/counselor) but was instead 

relegated to the rank of teacher and assigned teacher duties/responsibilities versus administrative, 

her duties and responsibilities were different, and she has been “severely degraded” as the 

Alternative School is for students with disciplinary and behavioral problems. (Doc. 18).

Mims may support her claims with direct evidence, circumstantial evidence, or statistical 

proof. Rioux v. City of Atlanta, Ga. 520 F.3d 1269, 1274 (11th Cir. 2008).10 There is no 

allegation or submission of direct evidence or statistical proof by Mims. Thus, Mims’ “proof of 

her claim of race discrimination is based on circumstantial evidence.” (Doc. 54 at 11).

 10 Direct evidence of discrimination is “evidence which reflects a discriminatory or retaliatory attitude 

correlating to the discrimination or retaliation complained of by the employee.” Wilson v. B/E Aerospace, Inc., 376 

F.3d 1079, 1086 (11th Cir. 2004). Specifically, direct evidence is evidence, which if believed, proves the existence 

of a fact in issue without inference or presumption. Taylor v. Runyon, 175 F.3d 861, 867 (11th Cir. 1999); Jones v. 

Bessemer Carraway Med. Ctr., 151 F.3d 1321, 1323 n. 11 (11th Cir. 1998); Burrell v. Board of Trustees of Ga. 

Military College, 125 F.3d 1390, 1393 (11th Cir. 1997). This means “only the most blatant remarks, whose intent 

could be nothing other than to discriminate on the basis of [race].” Van Voorhis v. Hillsborough Cnty. Bd. of Cnty. 

Comm'rs, 512 F.3d 1296, 1300 (11th Cir. 2008). See also Ferrell v. Masland Carpets, Inc., 97 F. Supp.2d 1114, 1123 

(S.D. Ala. 2000). Moreover, evidence that merely suggests a discriminatory motive is, by definition, circumstantial 

evidence. Burrell, 125 F.3d at 1393-1394. “[R]emarks by non-decisionmakers or remarks unrelated to the 

decisionmaking process itself are not direct evidence of discrimination.” Standard 161 F.3d at 1330. “To be direct 

evidence, the remark must indicate that the employment decision in question was motivated by race.” Scott v. 

Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1227-1228 (11th Cir. 2002).

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Where there is only circumstantial evidence, courts apply the framework in McDonnell 

Douglas Corp. v. Green, 411 U.S. 792 (1973). See, e.g., Chapman v. AI Transp., 229 F.3d 1012, 

1024 (11th Cir. 2000). Under McDonnell Douglas, the plaintiff has the initial burden of 

establishing a prima facie case of race discrimination. Id. To establish a prima facie case of 

discriminatory transfer, Mims must show she was: 1) a member of a protected class; 2) qualified 

for her current position; 3) subjected to a transfer constituting an adverse employment action; 

and 4) replaced by someone outside her protected class. Hinson v. Clinch Cnty., Ga. Bd. of Ed., 

231 F.3d 821, 828 (11th Cir. 2000). An “adverse employment action” requires “a serious and 

material change in the terms, conditions, or privileges of employment.” Webb–Edwards v. 

Orange Cnty. Sheriff's Office, 525 F.3d 1013, 1031 (11th Cir. 2008) (internal quotation marks 

omitted). The relevant inquiry is whether the employment action is “materially adverse as 

viewed by a reasonable person in the circumstances,” regardless of the “employee's subjective 

view of the significant adversity.” Id. A transfer can be adverse if it involves a serious and 

material “reduction in pay, prestige, or responsibility.” Hinson, 231 F.3d at 829. 

Further, in Sims v. MVM, Inc., 704 F.3d 1327, 1332-1333 (11th Cir. 2013), the Eleventh 

Circuit clarified that the McDonnell Douglas framework is not the sine qua non for a plaintiff to 

survive summary judgment. See Smith, 644 F.3d at 1328. “The plaintiff will always survive 

summary judgment if he presents circumstantial evidence that creates a triable issue concerning 

the employer's discriminatory intent.” Id. A triable issue of fact exists if the record, viewed in a 

light most favorable to the plaintiff, presents a “convincing mosaic” of circumstantial evidence 

that would allow a jury to infer intentional discrimination by the decisionmaker. Id. See

generally Hamilton v. Southland Christian School, Inc., 680 F.3d 1316, 1320 (11th Cir. 2012).

As to the first element, there is no dispute Mims is a member of a protected class, African 

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American. Second, the Court assumes on summary judgment that Mims is qualified for her 

position (as Defendants have not asserted otherwise). Nevertheless, even viewing the facts in the 

light most favorable to her, Mims has failed to show that the transfer constituted an adverse 

employment action and that she was replaced by someone outside her protected class. 

Specifically, Mims was transferred from the position of Assistant Principal/Counselor at 

Shields to the position of Assistant Principal/Counselor at the Alternative School. (Docs. 35-6; 

35-8; 39-10). Despite Mims’ subjective claims, however, only her work site changed. (Id.) 

Mims’ pay remained the same. (Id.) Mims’ position and title remained the same. (Id.) 

Additionally, Mims consented to this transfer after reviewing (with counsel) her title, pay, 

position, duties and responsibilities at the Alternative School. (Id.) A purely lateral transfer is 

not an adverse employment action and thus, cannot support a prima facie case of discrimination.

See, e.g., Doe. v. Dekalb Cty. Sch. Dist., 145 F.3d 1441, 1449-1451 (11th Cir. 1998). See also

e.g., Pegram v. Honeywell, Inc., 361 F.3d 272, 283-284 (5th Cir. 2004); Jones v. District of 

Columbia Dep't of Corr., 429 F.3d 276, 281 (D.C. Cir. 2005); Smith v. Alabama Dep't of Corr., 

145 F.Supp.2d 1291, 1297-1298 (M.D. Ala. 2001). Otherwise, “every trivial personnel action 

that an irritable, chip-on-the-shoulder employee did not like would form the basis of a 

discrimination suit[;]” “not everything that makes an employee unhappy is an actionable adverse 

action.” Doe, 145 F.3d at 1449. However, Mims’ subjective preferences and speculative 

conclusions about her transfer do not transform a purely lateral transfer into an adverse 

employment action. “[I]t seems significant that no panel of this [Eleventh] circuit has ever listed 

a plaintiff's particular subjective preference as a basis for its holding that a transfer was adverse.” 

Doe, 145 F.3d at 1551. Consequently, because an adverse employment action is an 

indispensable element of a discriminatory transfer claim, Turner’s failure to present sufficient

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evidence for a reasonable jury to find that this element is met is fatal to her claim. See, e.g., 

Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th Cir. 1998) (“Although a 

plaintiff's burden...is light, summary judgment against the plaintiff is appropriate if he fails to 

satisfy any one of the elements of a prima facie case[]”).

Moreover, even if the Court were to assume an adverse employment action occurred, 

Mims has failed to even allege, much less establish with evidentiary support, that she was 

replaced by someone outside her protected class.

Further, there is no “convincing mosaic” of circumstantial evidence that would allow a 

jury to infer intentional discrimination by the decisionmaker in these circumstances.

As Mims has failed to establish a prima facie case, the Court need not address 

Defendants’ articulated legitimate, non-discriminatory reasons for the transfer, or the matters of 

pretext or qualified immunity. As such, Defendants’ motion as to this claim is GRANTED.

3. Retaliation

Mims alleges Section 1983 retaliation against Murphy and the board members in their 

individual capacities, relying upon the “Fourteenth Amendment” and “equal protection of the 

law.” (Doc. 18 at 12). Section 1983 provides a cause of action for retaliation. Bennett v. 

Hendrix, 423 F.3d 1247 (11th Cir. 2005). However, a Section 1983 retaliation claim cannot be 

brought under the equal protection clause. Watkins v. Bowden, 105 F.3d 1344, 1354-1355 (11th

Cir. 1997) (“[a] pure or generic retaliation claim...simply does not implicate the Equal Protection 

Clause[]).” “The right to be free from retaliation is clearly established as a first amendment right 

and as a statutory right under Title VII; but no clearly established right exists under the equal 

protection clause to be free from retaliation.” Ratliff v. DeKalb Cty., Ga., 62 F.3d 338, 340 (11th

Cir. 1995). Mims’ Complaint references the “Fourteenth Amendment” and “equal protection” 

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multiple times, alleging Section 1983 retaliation. Thus, Mims’ Fourth Cause of Action for

Section 1983 equal protection retaliation as to these defendants (Doc. 18 at 12) is DISMISSED

as a matter of law. See, e.g., Betts v. Conecuh Cty. Bd. of Ed., 2014 WL 7411670, *7 (S.D. Ala. 

Dec. 30, 2014) and Owens v. Jackson Cty. Bd. of Ed., 561 Fed. Appx. 846, 848 (11th Cir. 2014)

(addressing dismissals on similar grounds).

C. Title VII claims: First Cause of Action -- “Employment Discrimination: Title 

VII, Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq” and Second 

Cause of Action -- “Employment Discrimination: Retaliation”

Mims alleges Title VII claims against the School Board. (Doc. 18 at 3 at ¶6). Mims 

appears to allege Title VII claims for disparate treatment (discriminatory transfer or “demotion”)

and retaliation. (Doc. 18 at 1-2, 12).

1. Disparate treatment - Discriminatory Transfer (“demotion”)

In the First Cause of Action, Mims alleges that the racial discrimination by the School 

Board “result[ed] in her demotion from positions of administrative duties and responsibilities.” 

(Doc. 18 at 3, 9 at ¶13). When a Title VII disparate treatment claim is based on the same facts as 

a Section 1981 or 1983 claim, “the analysis is the same under all theories of liability, and the 

claims need not be analyzed separately.” Lindsey v. Board of School Com’rs of Mobile Cty., 491 

Fed. Appx. 8, 9 (11th Cir. 2012). See also e.g., Richardson v. Leeds Police Dep't, 71 F.3d 801, 

806 (11th Cir. 1995) (with “disparate treatment, in which § 1983 is employed as a remedy for the 

same conduct attacked under Title VII, the elements of the two causes of action are the same...In 

both instances, the plaintiff must prove that the defendant acted with discriminatory intent[]”); 

Abel v. Dubberly, 210 F.3d 1334, 1338 (11th Cir. 2000) (providing that courts analyze Title VII 

and Section 1983 under the same standards); Butts v. County of Volusia, 222 F.3d 891, 893–894 

(11th Cir. 2000) (same). Thus, because Mims’ Title VII discriminatory transfer claim is based on 

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the same facts as her Section 1983 discriminatory transfer claim, the same result detailed supra

Section III.B.2 follows here, such that summary judgment is GRANTED on this claim.

2. Retaliation

In the Second Cause of Action, Mims alleges that the School Board retaliated against her 

for complaining about Murphy’s actions as superintendent. This retaliation happened when they

“rubber stamped, ratified, condoned and/or approved the discriminator[y] actions of the 

superintendent.” (Doc. 18 at 3 at ¶6, 10 at ¶17; Doc. 54 at 13).

Mims has not offered any direct evidence of retaliation. When a plaintiff produces only 

circumstantial evidence, the Court applies the McDonnell-Douglas burden shifting framework, 

see supra. In that regard, to establish a prima facie case of retaliation, Mims must prove that: 1) 

she engaged in a statutorily protected activity; 2) she suffered an adverse employment action; 

and 3) a causal link exists between the two. See, e.g., Bryant v. Jones, 575 F.3d 1281, 1307-

1308 (11th Cir. 2009). If Mims establishes her prima facie case, the burden of production shifts 

to the School Board to rebut the presumption by articulating a legitimate, nondiscriminatory 

reason for the adverse employment action. Perkins v. Kushla Water Dist., 21 F. Supp. 3d 1250, 

1266 (S.D. Ala. 2014); Smith, 565 Fed. Appx. at 776–77 (11th Cir. 2014); Bryant v. Jones, 575 

F.3d 1281, 1308 (11th Cir. 2009). If the School Board carries this burden, the burden shifts back 

to Mims to demonstrate that the School Board's proffered legitimate reasons for taking the 

adverse action were a pretext for retaliation and that her protected activity was the “but-for” 

cause of the adverse action. Mealing v. Georgia Dept. of Juvenile Justice, 564 Fed.Appx. 421, 

427 (11th Cir. 2014). See also Perry v. Alabama Alcoholic Beverage Control Bd., 973 F.Supp.2d 

1263, 1296 (M.D. Ala. 2013) (“the ultimate issue is whether the retaliation would not have 

occurred but for the protected conduct” and “[e]ven if any of the alleged discrete actions of 

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retaliation were sufficient to make out a prima facie case, they would not survive the ‘but-for’ 

test” based on the Supreme Court's clarification that the “level of causation” requires plaintiffs to 

show that the adverse employment action “would not have occurred but for the plaintiff's 

involvement with protected activity”).

Mims filed an EEOC charge, which satisfies the first element of her prima facie case.

11 

The Court turns to whether Mims has sufficiently shown that this protected activity resulted in an 

adverse employment action.12

Mims states that her transfer to the Alternative School was the retaliatory action. 

However, even if the Court were to assume that the transfer was a “demotion” and adverse 

employment action as Mims asserts, her retaliation claim rests on a factual impossibility. Mims 

was transferred from Shields to the Alternative School on June 7, 2012. (Doc. 35-7 at 3-4). The 

Court notes that the EEOC Charges submitted with the motion to dismiss filings (Docs. 4-1 and 

4-3) establish that she filed her initial EEOC Charge after she was transferred. Mims filed an

EEOC Charge on July 31, 2012 (received August 3, 2012), and another EEOC Charge on 

September 28, 2012 (received October 5, 2012). (Docs. 4-1 and 4-3). Thus, because Mims was 

transferred before she filed any EEOC Charge (54 days or more than seven (7) weeks prior), it is 

a factual impossibility that the School Board could have transferred Mims in retaliation for filing 

 11 An employee has engaged in protected activity if she has: 1) opposed an unlawful employment practice, 

or 2) “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” 

under Title VII's retaliation provision. Smith v. City of Fort Pierce, Fla., 565 Fed. Appx. 774, 776–777 (11th Cir. 

2014) (quoting EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171, 1174 (11th Cir. 2000) (quoting 42 U.S.C. § 2000e–

3(a))). See Walton–Horton v. Hyundai of Ala,, 402 Fed. Appx. 405, 408 (11th Cir. 2010) (“Statutorily protected 

expression includes internal complaints of discrimination to superiors, complaints lodged with the Equal 

Employment Opportunity Commission, and discrimination-based lawsuits[]”); Tarmas v. Secretary of Navy, 433 

Fed. Appx. 754, 762 (11th Cir. 2011) (“the filing of a claim with the EEOC is a ‘statutorily protected activity[]’”). 

12 An adverse employment action is judged by an objective standard, Foshee v. Ascension Health–IS, Inc., 

384 Fed. Appx. 890, 892 (11th Cir. 2010), and is an act that would “dissuade a reasonable worker from making or 

supporting a charge of discrimination[]” Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 64 (2006). It is not 

limited to retaliatory actions that affect the terms and conditions of employment. Id. at 68.

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an EEOC Charge as the Charge did not exist at the time of transfer.

Moreover, Mims provides no evidentiary support for her prima facie case and no specific 

record cites to any evidence submitted ostensibly in support. Instead, Mims rests her claim on a 

few sweeping statements that are confusing and lack record citations. For example, she asserts: 

“[s]he testified to the Superintendent’s retaliatory actions after she filed her EEOC Charge.” 

(Doc. 54 at 17). Similarly, Mims summarily states: “Plaintiff Mims testified how she was treated 

different from other counselors, assiatant [sic] principals and white employees[.]” (Doc. 54 at 

17). As stated supra, it is not the task of this Court to dig through the evidence submitted by 

Mims on summary judgment to find support for her claims. That task belonged to Mims.

At best then, Mims states her retaliation case (without any citation) as: “Superintendent 

Murphy had knowledge that they had field [sic] a charge of discrimination with the EEOC in 

July 2012 and September 2012, combined with the close temporal proximity of the chain of 

actions that followed thereafter, among them the hostile work environment while they were 

working at the alternative school, suggests causation.” (Doc. 54 at 18). Presumably, the claim is 

that because Mims filed EEOC complaints, she was subjected to a hostile work environment. 

However as discussed supra, Mims has failed to present sufficient evidence of a hostile work 

environment. Accordingly, the School Board’s motion is GRANTED on Mims’ Title VII 

retaliation claim.

IV. Conclusion

Accordingly, it is ORDERED that Mims’ Section 1981 claims for hostile work 

environment, race discrimination, and retaliation are DISMISSED as a matter of law; and Mims’ 

Section 1983 claim for equal protection retaliation is DISMISSED as a matter of law. 

Additionally as detailed supra, it is ORDERED that Defendants’ Motion for Summary 

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Judgment (Docs. 27, 40) is GRANTED as to Mims’ Title VII retaliation and discriminatory 

transfer claims; and GRANTED as to Mims’ Section 1983 discriminatory transfer and hostile 

work environment claims.

A Final Judgment consistent with the terms of this Order shall be entered by separate 

document as required by Rule 58 of the Federal Rules of Civil Procedure.

DONE and ORDERED this the 12th day of August 2015.

/s/ Kristi K. DuBose

KRISTI K. DuBOSE

UNITED STATES DISTRICT JUDGE

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