Witt et al v. Franklin County Board of Education, No. 3:2011cv01031 - Document 29 (N.D. Ala. 2013)

Court Description: MEMORANDUM OPINION. Signed by Judge C Lynwood Smith, Jr on 2/28/2013. (AHI)

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FILED 2013 Feb-28 PM 01:13 U.S. DISTRICT COURT N.D. OF ALABAMA UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA NORTHWESTERN DIVISION RESA WITT, et al., Plaintiffs, vs. FRANKLIN COUNTY BOARD OF EDUCATION, Defendant. ) ) ) ) ) ) ) ) ) ) Civil Action No. CV-11-S-1031-NW MEMORANDUM OPINION Plaintiffs, Resa Witt and Amy Moss, allege that their employer, the Franklin County Board of Education, engaged in gender discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ( Title VII ).1 Plaintiffs claim that defendant passed them over for several promotions in favor of less-qualified male candidates, and that defendant terminated Moss from her position as coach of the girls varsity basketball team at Phil Campbell High School for conduct that did not result in the termination of male basketball coaches. Defendant moved for summary judgment, and to strike portions of plaintiffs evidentiary submissions in opposition to summary judgment.2 Upon consideration of the motions, briefs, and evidentiary submissions, the motion to strike will be granted 1 Doc. no. 1. 2 Doc. no. 15; doc. no. 25. in part and denied in part, and the motion for summary judgment will be granted. I. MOTION TO STRIKE Defendant asks the court to strike nineteen documents from plaintiffs evidentiary submissions: ten affidavits or declarations;3 six letters or notes;4 and three Facebook message exchanges.5 Defendant bases its motion on plaintiffs failure to disclose those exhibits, or the witnesses who created them, in either their initial disclosures or during discovery.6 Plaintiffs concede that thirteen of the documents are due to be stricken.7 Therefore, the court will disregard those documents in its analysis of the motions to strike and for summary judgment. Even though three more documents i.e., Facebook messages from Wes Borden, Wade Berryman, and Riley Hughes are classic hearsay, plaintiffs could reduce their substance to admissible form at trial by calling the authors of the 3 The Declaration of J.R., and the Affidavits of Chris Latham, Jeremy Kimbrough, Walker Kennerly, William Holcomb, Terry Witt, Orvall Seay, Danny McClung, Riley Hughes, and William Roddy. See doc. no. 25, at 1-2. 4 Letters from William Smith, Tami Brown, Scotty Brown, and Notes from Jill Harris, Bridget DeVaney, and Libbey DeVaney. Id. at 1. 5 Messages posted on the Facebook pages of Wes Borden, Wade Berryman, and Riley Hughes. Id. 6 Doc. no. 15 ¶ 1. 7 Plaintiffs consent to striking all of the following: the Declaration of J.R. ; the Affidavits of Chris Latham, Jeremy Kimbrough, Walker Kennerly, Danny McClung, Riley Hughes, and William Roddy; the Letters from William Smith, Tami Brown, and Scotty Brown; and the Notes from Jill Harris, Bridget DeVaney, and Libbey DeVaney. Doc. no. 28 (Response to Motion to Strike), at 8. Plaintiffs do not consent to striking the affidavits of William Holcomb, Terry Witt, or Orval Seay. 2 messages as witnesses. See, e.g., McMillian v. Johnson, 88 F.3d 1573, 1584 (11th Cir. 1996); Catrett v. Johns-Manville Sales Corp., 826 F.3d 33, 37-38 (D.C. Cir. 1997); Williams v. Borough of West Chester, 891 F.2d 458, 466 (3d Cir. 1990). Accordingly, and because the content of the messages is central to Amy Moss s wrongful termination claim, the messages will not be stricken. Thus, three documents remain in dispute: the affidavits of William Holcomb, Terry Witt, and Orval Seay. Defendant argues that the documents should be stricken pursuant to Federal Rule of Civil Procedure 37(c)(1), which provides that, when a party fails to disclose evidence, the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. A failure to disclose is considered harmless when there is no prejudice to the party entitled to the disclosure. Chapple v. State of Alabama, 174 F.R.D. 698, 701 (M.D. Ala. 1997) (addressing a plaintiff s failure to disclose an expert witness). When construing a motion to strike, the court must consider (1) the importance of the testimony; (2) the reason for the [offering party s] failure to disclose the witness [or document] earlier; and (3) the prejudice to the opposing party if the witness [is] allowed to testify [or the document is taken into consideration when ruling upon a dispositive motion]. Bearint ex rel. Bearint v. Dorell Juvenile Group, Inc., 389 F.3d 3 1339, 1353 (11th Cir. 2004) (alterations supplied). The burden of establishing that a failure to disclose was substantially justified or harmless rests on the nondisclosing party. Mitchell v. Ford Motor Co., 318 F. App x 821, 825 (11th Cir. 2009) (quoting Leathers v. Pfizer, Inc., 233 F.R.D. 687, 697 (N.D. Ga. 2006)). A. Affidavit of William Holcomb Defendant objects to the affidavit of William Holcomb, the grandfather of one of the basketball players coached by plaintiff Amy Moss. Although plaintiffs did not disclose Holcomb as a witness, defendant had ample notice that Holcomb might have information about the case, because it was counsel for defendant who introduced Holcomb s name during Moss s deposition.8 Given the unlikelihood that defendant was surprised or prejudiced by the non-disclosure of Holcomb, the court will not strike his affidavit. B. Affidavit of Terry Witt Defendant next moves to strike the affidavit of Terry Witt,9 the husband of plaintiff Resa Witt. The affidavit contains three categories of information: statements of fact that parallel the deposition testimony of Resa Witt;10 statements of fact 8 Doc. no. 17-3 (Deposition of Amy Moss), at 63-64. 9 Doc. no. 23-11, at ECF 27-32 (Affidavit of Terry Edward Witt). 10 Compare doc. no. 17-1 (Deposition of Resa Witt), at 185-86 (testifying that Witt rarely had disciplinary problems with students over the course of her career) with doc. no. 23-11 (Affidavit of Terry Edward Witt) ¶ 8 (stating that Witt has always been an effective disciplinarian). 4 regarding the emotional toll of the alleged discrimination on Resa Witt, an issue not implicated at the summary judgment stage;11 and conclusory statements regarding the motivations of various school officials who are not parties to this action.12 Because Terry Witt supplies no new, relevant information, the court will strike his affidavit. C. Affidavit of Orval Seay Finally, defendant moves to strike the affidavit of Orval Seay, whose retirement created a job opening for which both plaintiffs applied, and which defendant filled by hiring Herbert Truelove. During Truelove s deposition, plaintiffs counsel asked Truelove who preceeded him, and Truelove named Seay as his predecessor. 13 Seay s brief affidavit merely offers his state educational certifications and position with defendant.14 Seay s testimony is vital because the parties contest the issue of whether plaintiffs and Truelove had the proper certifications to fill Seay s position. Further, any prejudice to defendant is slight because Seay s identify was known to defendant: Seay was the only employee to hold the contested position during his period of employment. Thus, plaintiffs failure to disclose Seay as a witness was harmless, and 11 See id. ¶¶ 2-5, 13-15. 12 See id. ¶ 9 ( Superintendent Gary Williams uses Principal Cindy Davis as a conduit to intimidate and harass [Witt]. Apparently, Principal Davis is happy to oblige. ) (alteration supplied). 13 Doc. no. 17-7 (Deposition of Ruie Herbert Truelove), at 21-22. 14 See generally doc. no. 23-15 (Affidavit of Orval L. Seay). 5 his affidavit will not be stricken. II. SUMMARY JUDGMENT STANDARD Federal Rule of Civil Procedure 56 provides that summary judgment should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).15 In other words, summary judgment is proper after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party s case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In making this determination, the court must review all evidence and make all reasonable inferences in favor of the party opposing summary judgment. Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc). Even so, an inference is not reasonable if it is only a guess or a possibility, for such an inference is not based on the evidence, but is pure conjecture and speculation. Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir. 1983). Moreover, 15 Rule 56 was amended, effective December 1, 2010, in conjunction with a general overhaul of the Federal Rules of Civil Procedure. The Advisory Committee was careful to note, however, that the changes will not affect continuing development of the decisional law construing and applying these phrases. Adv. Comm. Notes to Fed. R. Civ. P. 56 (2010 Amends.). Consequently, cases interpreting the previous version of Rule 56 are equally applicable to the revised version. 6 [t]he mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case. The relevant rules of substantive law dictate the materiality of a disputed fact. A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor. Chapman, 229 F.3d at 1023; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). III. FACTUAL BACKGROUND Defendant, the Franklin County Board of Education ( the Board ), is a public school system in the State of Alabama. The Board manages all of the schools in Franklin County, except those that are part of the Russellville City system. The Board has five elected members, all of whom are male.16 The chief executive of the Board is the Superintendent, who is elected to a four-year term and reports to the Board.17 The current Superintendent is Gary Williams, who was elected in 2008.18 Williams was preceded by Bill Moss, the father-in-law of plaintiff Amy Moss, who was first elected in 2000, and served two consecutive terms.19 Gary Williams served as Assistant Superintendent during Bill Moss s tenure, and the Moss family supported 16 Doc. no. 17-5 (Deposition of Gary Williams), at 33. 17 See id. at 25. 18 Id. 19 Id. 7 Williams s 2008 campaign.20 A. Plaintiffs Education and Experience Plaintiffs, Amy Moss and Resa Witt, are both employees in the Franklin County School System. Moss primarily teaches Physical Education ( P.E. ) classes, and Witt primarily teaches mathematics classes.21 Both plaintiffs teach at Phil Campbell High School.22 1. Amy Moss Amy Moss s husband, Bart Moss, teaches history at Tharptown High School, and his father, Bill Moss, is the former Superintendent of the Franklin County School System.23 Amy Moss holds a bachelor s degree in physical education and health education, a master s degree in educational leadership, and an educational specialist degree.24 She has received two Leadership Certificates as an Educational Administrator for the P-12 grade levels.25 She also has two Professional Certificates: one in Physical Education for the P-12 grade levels, and one in Health 20 See id. at 53, 102-03. 21 Doc. no. 17-3 (Deposition of Amy Moss), at 25; doc. no. 17-1 (Deposition of Resa Witt), at 22-23. 22 Doc. no. 17-3 (Deposition of Amy Moss), at 24-25; doc. no. 17-1 (Deposition of Resa Witt), at 22. 23 Doc. no. 17-3 (Deposition of Amy Moss), at 10-11, 15. 24 Id. at 11-12; doc. no. 23-2 (Affidavit of Amy Moss) ¶ 35. 25 Doc. no. 23-17 (Certificates), at ECF 3 (Amy Moss Certificate Details). Although they have the same title, the two Leadership Certificates are distinguished by the educational background required to qualify for each. 8 Education for the 7-12 grade levels.26 Moss began her educational career as a substitute teacher in the Lauderdale County system during the 1997-98 academic year.27 She was officially hired as a fulltime teacher of Physical Education and Health in February of 1998, but her employment was not renewed when a former teacher expressed a desire to return to teaching those classes.28 She then took a job in the Haleyville City system teaching Physical Education and coaching girls junior high school sports, including volleyball, softball, basketball, and track.29 Despite the fact that Moss remained at Haleyville for seven years and attained tenure, she left Haleyville for Phil Campbell High School after the 2004-05 school year in order to coach its girls varsity basketball team.30 Since then, she has primarily has taught Physical Education for grades 7-12, although she also began teaching two Health classes during the 2010-11 school year, and a basic literacy class for eighth grade students during the 2011-12 school year.31 Those changes in Moss s schedule have not resulted in her teaching a greater number of classes or hours.32 26 Id. 27 Doc. no. 17-3 (Deposition of Amy Moss), at 19-20. 28 Id. at 20-21. 29 Id. at 22. 30 Id. at 23; see also doc. no. 23-2 (Affidavit of Amy Moss) ¶¶ 2-3. 31 Doc. no. 17-3 (Deposition of Amy Moss), at 25. 32 Id. at 26. 9 2. Resa Witt Resa Witt holds a bachelor s degree in mathematics and physical education, a master s degree in mathematics education and educational administration, and an educational specialist degree, and is currently pursuing a doctoral degree in educational leadership.33 Like Amy Moss, Witt has received two Leadership Certificates as an Educational Administrator for grades P-12. 34 She also has two Professional Certificates in Mathematics for grades 7-12, a Professional Certificate in Physical Education for grades P-12, and a Highly-Qualified Teacher Eligibility certificate in Mathematics for grades 7-12. 35 Witt began her teaching career during the 1994-95 academic year at a middle school in Tishomingo, Mississippi.36 Having spent three years at Tishomingo teaching mathematics and computer-discovery courses, Witt left that school system after the 1997-98 school year to take her current job as a mathematics teacher at Phil Campbell High School.37 In addition to mathematics, she taught career classes for two or three years early in her employment with the Board.38 At some point, she also taught 33 Doc. no. 17-1 (Deposition of Resa Witt), at 13-16. 34 Doc. no. 23-17 (Certificates), at ECF 6 (Resa Witt Certificate Details). 35 Id. As with the Educational Administrator certificates that Moss and Witt both hold, the two identically-named mathematics certificates are distinguished by the educational level required to obtain them. 36 Doc. no. 17-1 (Deposition of Resa Witt), at 20-21. 37 Id. at 21-22. 38 Id. at 23. 10 a history class.39 The mathematics courses she now teaches include Algebra and Geometry.40 B. Amy Moss s Tenure as Girls Basketball Coach at Phil Campbell Moss initially served as head coach for both the Phil Campbell High School girls varsity basketball team, and its girls junior high school basketball team, but she relinquished control of the junior high team to two of her former players in 2009.41 Moss also coached the girls track team.42 When Moss took over the girls basketball teams in 2005, the teams were struggling, but under her guidance, they enjoyed greater success.43 Some of that improvement may be attributable to Moss s offseason conditioning program: she required her basketball players to run track in the spring, even if they also participated in another sport during that season.44 During Moss s tenure as girls basketball coach, she was involved in several incidents with players, students, and parents. The details of the incidents are in dispute. The Board produced statements of numerous witnesses alleging that Moss 39 Id. at 24. 40 Id. at 24-25. 41 Doc. no. 23-2 (Affidavit of Amy Moss) ¶ 2. Id. 43 Id. ¶ 3. 42 44 Doc. no. 17-3 (Deposition of Amy Moss), at 30. 11 yelled and used profanity, but those accounts were compiled during the course of the litigation, and not recorded contemporaneously with the events.45 Moss testified that the witnesses whose accounts conflicted with her own must have been lying.46 In accordance with the summary judgment standard, the facts set forth below reflect Moss s version.47 1. Argument with a player s father When Moss s team played in a Thanksgiving Day tournament at Russellville in 2006, one of the players, who is identified by her initials, S.J., received limited playing time.48 After the game, S.J. s father confronted Moss, because he was angry that his daughter had not played more.49 Moss explained that S.J. played about as much as she was going to play . . . throughout the year due to the fact she was always the last one off the bench. 50 S.J. s father said that he did not think that was fair, because S.J. put in the same 45 See doc. no. 17-9 (Affidavit of Gary Williams), Ex. B (Statements Regarding Amy Moss), at ECF 5-41. 46 Doc. no. 17-3 (Deposition of Amy Moss), at 49, 52-54, 56, 83, 174. 47 Moss acknowledged that upon termination, she was accused of some of the behavior that she denied at her deposition. Id. at 33; doc. no. 23-2 (Affidavit of Amy Moss) ¶¶ 5-6. There is no dispute that the Board received complaints about Moss s behavior and, because the Board s receipt of such complaints (whether true or not) bears upon its reasons for terminating her employment, the court will take note of such allegations. 48 Doc. no. 17-3 (Deposition of Amy Moss), at 81. 49 Id. at 81-82. 50 Id. at 82. 12 amount of time and effort in preparing for games as did the other players.51 Moss responded that, if he didn t like it, [S.J.] didn t have to play. 52 Moss gestured at S.J. s father and reiterated that she did not have to explain anything to him or to his daughter.53 The following day, a Sunday, S.J. quit the team, and turned in her uniform.54 When S.J. arrived at her Physical Education class on Monday, Moss, the teacher, told her that she needed to have her schedule changed, because that Physical Education class was only for athletes, and S.J. had lost her eligibility to take the class by quitting the team.55 However, S.J. needed to take a Physical Education class in order to graduate, and her removal from the course required her to rearrange her class schedule in order to take a P.E. class during a different period.56 2. Dismissal of a player During another incident, Moss testified that she dismissed a player, who is identified by her initials, J.H., from the junior high team as a result of the player s 51 Id. 52 Id. (alteration supplied). 53 Doc. no. 17-9 (Affidavit of Gary Williams), Ex. B (hereafter Statements Regarding Amy Moss ), at ECF 22 (Statement of S.J. s Parents); doc. no. 16 (Brief in Support of Summary Judgment), at Defendant s Undisputed Facts ¶ 10 (hereafter Defendant s Facts ). The court will cite to the parties statements of fact, to the extent that those statements are undisputed. 54 Doc. no. 17-3 (Deposition of Amy Moss), at 84; doc. no. 17-5 (Deposition of Gary Williams), at 94. 55 Doc. no. 17-3 (Deposition of Amy Moss), at 84-85. 56 Doc. no. 17-5 (Deposition of Gary Williams), at 94-95. 13 behavioral issues.57 Moss also told J.H. that she would never play for Phil Campbell High School again.58 Before dismissing J.H. from the team, Moss allegedly sought the assistance of J.H. s parents to address the behavioral issues, but those efforts were apparently not successful.59 In fact, on one occasion, J.H. s mother caused a disruption at the school gym, leading Moss to have the police remove her.60 3. Player criticized for choice of high schools East Franklin Junior High School students who complete the ninth grade have the option of attending either Phil Campbell or Tharptown High School for grades ten through twelve.61 One East Franklin ninth-grader, who is identified by her initials, K.M., 62 joined the Phil Campbell varsity basketball team near the end of the season, 57 Doc. no. 17-3 (Deposition of Amy Moss), at 64. 58 Defendant s Facts ¶ 14; doc. no. 17-5 (Deposition of Gary Williams), at 96-97. 59 Doc. no. 17-3 (Deposition of Amy Moss), at 64; doc. no. 23-2 (Affidavit of Amy Moss) ¶¶ 21-22. 60 Doc. no. 17-3 (Deposition of Amy Moss), at 64; doc. no. 23-2 (Affidavit of Amy Moss) ¶¶ 21-22. Members of J.H. s family complained to Superintendent Williams that, in addition to dismissing J.H. from the team, Moss had the team encircle her and tell her that she was responsible for losing a game. Doc. no. 17-5 (Deposition of Gary Williams), at 96-97; Statements Regarding Amy Moss, at ECF 5-7 (Statement of J.H. s Grandfather). Moss was not confronted with this allegation until her dismissal. See doc. no. 17-3 (Deposition of Amy Moss), at 66-67. 61 See doc. no. 17-5 (Deposition of Gary Williams), at 23; doc. no. 17-3 (Deposition of Amy Moss), at 85-87; doc. no. 17-8 (Defendant s Answers to Interrogatories), at 6. 62 The record is not clear on the last name of K.M. Because her grandmother s last name begins with the letter M, the court will refer to the student as K.M. See Statements Regarding Amy Moss, at ECF 25-26 (Statement of K.M. s Grandmother); doc. no. 17-3 (Deposition of Amy Moss), at 85-86. 14 and played with the team during its summer workouts.63 Before K.M. decided between Phil Campbell and Tharptown, Moss told K.M. and her family that they should choose a school and go wherever was going to make them happy. 64 Shortly before the school year began, however, Moss heard that K.M. planned to enroll at Tharptown, rather than Phil Campbell.65 Moss telephoned K.M. and told her that she was letting her teammates down after she had played with us all summer because we had the potential to be pretty good. 66 Moss testified that she had not spoken to K.M. since her enrollment at Tharptown,67 but subsequently admitted to telling K.M. to get the hell out of my face during a basketball game at Red Bay High School.68 4. Player called a liar One of the Phil Campbell High School girls basketball players became pregnant during the 2009-10 season.69 Although the player tried to hide her 63 Doc. no. 17-3 (Deposition of Amy Moss), at 86. Apparently, ninth-graders who are already varsity-caliber athletes may join either the Phil Campbell or Tharptown team while still enrolled at East Franklin, but are not then obligated to attend that same high school for the next three years. Such appears to have been the case with K.M. 64 Id. at 87. 65 Id. 66 Id. 67 Id. at 88. 68 Defendant s Facts ¶ 18; see also Statements Regarding Amy Moss, at ECF 25 (Statement of K.M. s Grandmother). Moss s presence at a Red Bay-Tharptown game is presumably explained by the fact that her husband coaches the Tharptown Junior High School boys basketball team. 69 Doc. no. 17-3 (Deposition of Amy Moss), at 38-39. 15 pregnancy, it eventually became obvious to Moss and others.70 Moss asked another player, identified as T.M., how long she had known about the pregnancy.71 T.M. told Moss that she found out when Moss did.72 At roughly the same point in the season, Moss removed T.M. from the starting lineup.73 With T.M. on the bench, the team s record improved from 2-7 to 14-14.74 T.M. alleged that Moss accused her of knowing about the pregnancy, and called T.M. a liar for not informing Moss earlier.75 T.M. s mother wanted a meeting with Moss to discuss the way she treated her daughter.76 When Moss learned of T.M. s mother s wishes from another player s parent, Moss contacted Superintendent Williams, who told her not to worry about T.M. s mother, because her complaint simply concerned her daughter s playing time.77 5. Scoresheet incident During the 2006-07 season, the mother of junior high school player identified 70 See doc. no. 23-4 (Affidavit of Joseph Bartlette Moss) ¶ 15 n.1 ( Everyone suspected S.G. was pregnant because her physical condition was becoming increasingly obvious. ). 71 Doc. no. 17-3 (Deposition of Amy Moss), at 39. 72 Id. 73 See id. at 39-40. 74 Id. at 40. 75 Statements Regarding Amy Moss, at ECF 13 (Statement of T.M. s Mother). 76 See id.; doc. no. 17-5 (Deposition of Gary Williams), at 105-07. 77 Doc. no. 23-2 (Affidavit of Amy Moss) ¶ 16; see doc. no. 17-3 (Deposition of Amy Moss), at 40 ( I have never spoke[n] to [T.M. s mother]. ) (alterations supplied); id. at 43-44. 16 as S.H. kept a personal scoresheet during each game.78 Although that practice did not upset Moss, she admitted that she thought it was selfish for a parent to keep a scoresheet.79 After one game, which Phil Campbell High School lost by a score of 41-7, Moss obliquely addressed the issue of the personal scoresheet in a post-game speech to the team by asking her players, [A]re we getting better as a team or are we worried about ourselves? 80 6. The Senior Night incident The Phil Campbell High School varsity girls basketball team played its final home game of the 2009-10 season on January 28, 2010.81 Like many high schools, Phil Campbell designated that game as Senior Night, in recognition of those players who were playing their final home game.82 Although there were a number of seniors on the team, the players who typically started games and played the most were sophomores.83 Phil Campbell hosted Shoals Christian High School and, with the 78 Doc. no. 17-3 (Deposition of Amy Moss), at 49; Statements Regarding Amy Moss, at ECF 20 (Statement of S.H. s Father); Statements Regarding Amy Moss, at ECF 23 (Statement of S.H. s Mother). 79 Doc. no. 17-3 (Deposition of Amy Moss), at 49. 80 Id. at 49-52 (alteration supplied); see also Statements Regarding Amy Moss, at ECF 20 (Statement of S.H. s Father) (stating the score of the game); Statements Regarding Amy Moss, at ECF 23 (Statement of S.H. s Mother) (same). 81 Doc. no. 17-3 (Deposition of Amy Moss), at 34; doc. no. 23-2 (Affidavit of Amy Moss) 82 Doc. no. 23-2 (Affidavit of Amy Moss) ¶ 12. 83 Id. ¶ 12. 17 sophomores on the floor, built a 25-point lead.84 Moss then inserted her reserve players, including several seniors.85 The Phil Campbell bench players were not as effective as the starters, and Shoals Christian cut into Phil Campbell s lead.86 Moss reinserted her underclassmen starters in an effort to win the game.87 When the Phil Campbell starters checked back into the game, two senior players still had not played.88 The Phil Campbell student section, which was seated behind home bench, began to chant, Seniors! Seniors! 89 Moss turned to the two seniors who had yet to play and told them to quiet the crowd, or they would never play again.90 It is not clear whether the players attempted to quiet the crowd, but the student section did not stop chanting. Moss then faced the student section and told the spectators to shut up! 91 7. Termination as girls basketball coach 84 Id. 85 Id. 86 Id. 87 Id. The record does not include an statement of the game s final outcome. 88 See Defendant s Facts ¶¶ 22-23. 89 Id. Moss characterized the chanting as the student section s heckling of her. Doc. no. 23-2 (Affidavit of Amy Moss) ¶ 13. 90 Defendant s Facts ¶ 23. Although Senior Night was the last home game of the year, Phil Campbell had at least one more regular season game, and participated in an area tournament. Doc. no. 17-3 (Deposition of Amy Moss), at 31. 91 Doc. no. 23-2 (Affidavit of Amy Moss) ¶ 13; doc. no. 17-3 (Deposition of Amy Moss), at 35. Numerous witnesses alleged that Moss actually said Shut the hell up, which was the version of the incident recounted to Superintendent Williams the next day. See Statements Regarding Amy Moss; doc. no. 17-5 (Deposition of Gary Williams), at 103-04. 18 The morning after the Senior Night game, Superintendent Williams stopped at a convenience store on his way to his office.92 Several people who were eating breakfast there asked Williams if he was aware of what had occurred during the game the night before, told him that Moss had yelled at the student section to shut the hell up, and asked how much longer he was going to put up with her shit. 93 Williams also received telephone calls complaining about Moss s behavior at the game.94 About two weeks later, Williams apparently as a courtesy met with his predecessor and Amy Moss s father-in-law, Bill Moss, and told him that he planned to ask Amy Moss to resign.95 After the conclusion of the basketball season, there was friction between Moss and Darit Riddle, the assistant principal and coach of the Phil Campbell High School girls softball team. Moss required her basketball players to participate in track during the spring, a sport that Moss also coached.96 Even so, Riddle told the members of the softball team who also played basketball that they were not obligated to run track.97 Superintendent Williams, Phil Campbell Principal Cindy Davis, and Athletic Director Kelly Kiser held a meeting with both coaches to resolve the issue on March 10, 92 Defendant s Facts ¶ 25; doc. no. 17-5 (Deposition of Gary Williams), at 103. 93 Doc. no. 17-5 (Deposition of Gary Williams), at 103; see also Defendant s Facts ¶ 26. 94 Doc. no. 17-5 (Deposition of Gary Williams), at 108. 95 Id. at 108-09. 96 Doc. no. 17-3 (Deposition of Amy Moss), at 30. 97 Id. 19 2010.98 Williams allowed Moss to require basketball players to participate in track, even while they were actively participating in the softball program.99 After the question of participation in track was settled, Riddle was dismissed from the meeting.100 Williams then told Moss that, after praying over the issue and meeting with Bill Moss, he had reached a difficult decision.101 Before indicating what the decision was, [Williams] started to rattle off everything [that he thought Amy Moss had done wrong] in the last four years. 102 According to Williams, parents had complained that Moss had told the crowd to shut the hell up at the Senior Night game.103 Although Moss argued that she had actually said shut up with a pause in between, Williams did not give her a chance to explain, and insisted that she had said shut the hell up. 104 In addition to the Senior Night incident, Williams noted numerous complaints about [Moss s] coaching and [] teaching. 105 Williams accused Moss of refusing to meet with the mother of the player identified as T.M., and of denying playing time 98 Id. at 31-32. 99 Id. at 32. 100 Id. at 32-33. 101 Id. at 33. 102 Doc. no. 17-3 (Deposition of Amy Moss), at 33 (alterations suppled); see also doc. no. 23-2 (Affidavit of Amy Moss) ¶ 5. 103 Doc. no. 17-3 (Deposition of Amy Moss), at 33-34. 104 Id. at 36; see also doc. no. 23-2 (Affidavit of Amy Moss) ¶ 13. 105 Doc. no. 23-2 (Affidavit of Amy Moss) ¶ 6 (alterations supplied). 20 to several other players, without affording Moss an opportunity to rebut those allegations.106 Moss asked Williams if he was requesting her resignation, and Williams said that he was.107 Moss then asked Athletic Director Kiser and Principal Davis if they agreed with Williams s recommendation that she resign. Kiser responded that he did not, while Davis stated that she did not believe that she had any authority in the matter.108 Moss said that she would not resign, because male coaches had retained their positions in the wake of more significant incidents.109 At the next Board meeting on March 25, 2010, Williams recommended the termination of Moss as coach of the varsity girls basketball team at Phil Campbell High School, and the Board voted 4-1 in favor of his recommendation.110 Williams issued a letter to Moss, informing her of the Board s decision, and stating that she was being terminated from basketball (only). 111 8. Actions of other male coaches a. Darit Riddle 106 Id.; doc. no. 17-3 (Deposition of Amy Moss), at 34. 107 Doc. no. 23-2 (Affidavit of Amy Moss) ¶ 8. 108 Id. ¶ 9. 109 Id. ¶¶ 8-9. 110 Id. ¶ 10; doc. no. 23 (Brief in Opposition to Summary Judgment), at Plaintiffs Statement of Facts ¶ 37 (hereafter Plaintiffs Facts ). 111 Doc. no. 23-24 (Termination Letter); Plaintiffs Facts ¶ 38. 21 Darit Riddle is an assistant principal at Phil Campbell High School who coaches the girls softball team.112 During Moss s tenure as coach of the girls varsity basketball team, Riddle coached the boys basketball team, and after Moss s termination, he replaced Moss as coach of the girls varsity basketball team.113 Plaintiffs argue that Riddle retains his coaching positions, despite the following allegations of improper behavior. i. Comment about a female player s breasts During practice, Phil Campbell High School basketball players wear reversible uniforms that are black on one side and white on the other.114 The girls usually wear shirts under their uniforms, which allows them to reverse the uniforms in the gym without fear of exposure.115 In November of 2011, however, a player identified as M.H. was not wearing a shirt under her uniform when she was asked to reverse it.116 Riddle turned his back to the player so she could change, adding the words, [i]t s nothing we haven t seen before. 117 During his deposition, Riddle explained that his comment was a reference to an offseason team camp that was held in Pensacola, 112 Doc. no. 23-26 (Deposition of Darit Riddle), at 7. 113 See id.; doc. no. 17-3 (Deposition of Amy Moss), at 89; doc. no. 23-26 (Deposition of Darit Riddle), at 11. 114 Id. at 15. 115 Id. 116 Id. at 15-16. 117 Id. at 16. 22 Florida, at which the players, coaches, and parents spent time at the beach, and the players wore a bikini or something relatively skimpy. 118 The following Sunday, a different Phil Campbell player met Superintendent Williams at church, and told him that Riddle had actually said, That s nothing I ve never seen before. Somebody give her some Band-Aids to put over those mosquito bites, in reference to M.H. s nipples.119 Williams met with Riddle the next day and told him that Williams thought his alleged language was inappropriate. . . [that] that didn t need to be happening, and [that the Board] couldn t put up with that type of behavior. 120 Riddle told Williams that he did not comment specifically on M.H s nipples, but only referred to the fact that, while at the camp, he had seen the girls in their bathing suits with bra-like tops on. 121 Williams also spoke with M.H. s mother, who said [that] when she [first] heard [about Riddle s comment], she was a little bit upset about it; but by the time [Williams] had spoken with her, she wasn t. 122 Williams did not speak with M.H. herself, because they attend the same church, and he did not want to embarrass her.123 Although Riddle was issued a formal, written reprimand, Williams allowed Riddle to 118 Id. at 16-18. 119 Doc. no. 17-5 (Deposition of Gary Williams), at 39-40. 120 Id. at 43-44 (alterations supplied). 121 Id. 122 Id. at 44 (alterations supplied). 123 Id. at 45. 23 provide a written account of his version of the incident, and did not relieve Riddle of his coaching duties.124 ii. Dancing at the 2010 prom125 Riddle was photographed dancing with students and a fellow teacher at Phil Campbell High School s prom in the spring of 2010.126 The photograph depicts four individuals dancing in a line: Phil Campbell teacher Amy Gunderman; an unidentified, female student with her back to Riddle s chest; Riddle; and R.C., a male student with his hips pressed to Riddle s buttocks.127 While dancing, Riddle was described as engaging in a humping motion.128 Riddle testified that he was not aware of any previous criticism regarding his conduct.129 Superintendent Williams 124 Doc. no. 23-26 (Deposition of Darit Riddle), at 20-21. 125 Moss also raises two other incidents involving Riddle: rumors that he was being friendly with a female student early in his career; and allegations that he called his players stupid at practice. See id. at 22; doc. no. 17-3 (Deposition of Amy Moss), at 92-93. According to Riddle s uncontroverted testimony, the unsubstantiated rumors about him were not true. Doc. no. 23-26 (Deposition of Darit Riddle), at 22. Further, Moss admitted that she had no personal knowledge of Riddle calling his players stupid ; she only heard about it from unnamed parents, players, and former assistant coaches. Doc. no. 17-3 (Deposition of Amy Moss), at 92-93. Because the evidence of those incidents is supported by little more than Moss s self-serving hearsay testimony, the court will not consider them. 126 See doc. no. 23-26 (Deposition of Darit Riddle), at 46-49; doc. no. 17-3 (Deposition of Amy Moss), at 245-56; doc. no. 17-5 (Deposition of Gary Williams), at 47-48; see also doc. no. 17-3 (Deposition of Amy Moss), Ex. 21 (Photograph of Spring 2010 Prom), at ECF 45; doc. no. 17-2 (Exhibits to Deposition of Resa Witt), Ex. 33 (Screenshot of Tina King s Facebook Page), at ECF 65. The copy of the photograph provided to the court is grainy, dark, and depicts only shadowy figures. 127 Doc. no. 23-26 (Deposition of Darit Riddle), at 47-49; doc. no. 17-3 (Deposition of Amy Moss), at 245-46. 128 Doc. no. 17-3 (Deposition of Amy Moss), at 248-52. 129 Doc. no. 23-26 (Deposition of Darit Riddle), at 49. 24 testified that he had not seen the photograph prior to this litigation; in any event, he did not think that it portrayed anything improper, and noted that teachers danced at every prom he had ever attended.130 b. Bo Culver Bo Culver, the head football coach at Phil Campbell High School, once called a player brain dead and dumb as a bag of hammers after a poorly executed play.131 When confronted by the player s father, Culver admitted to making the comment, but maintained that he did not mean it as an insult.132 The player s father also called Superintendent Williams, who confirmed the incident with Culver, but took no disciplinary action.133 c. Greg Watson134 Greg Watson is the boys basketball coach at Belgreen High School in Franklin 130 Doc. no. 17-5 (Deposition of Gary Williams), at 47-49. 131 Doc. no. 17-3 (Deposition of Amy Moss), at 173-74, 354-55; see doc. no. 17-5 (Deposition of Gary Williams), at 123-24. 132 Doc. no. 17-3 (Deposition of Amy Moss), at 354-55; see doc. no. 17-5 (Deposition of Gary Williams), at 123-24.. 133 Doc. no. 17-5 (Deposition of Gary Williams), at 123-24. 134 The record is not clear regarding the correct name of Greg Watson. The now-stricken affidavit of Riley Hughes refers to that individual as Greg Watson, see doc. no. 23-25 ¶ 2, as does plaintiffs response brief. Doc. no. 23, at 16. However, in their depositions, Amy Moss and Superintendent Williams refer to that individual only as Coach Watkins. See doc. no. 17-3 (Deposition of Amy Moss), at 157-60; doc. no. 17-5 (Deposition of Gary Williams), at 36-39. In any event, Hughes, Moss, and Williams all refer to the same individual involved in the same incident. The court refers to that individual as Greg Watson for convenience and consistency. 25 County.135 During a game between Belgreen and Tharptown High School, Belgreen s players began holding the ball on offense to prevent Tharptown from scoring.136 A player for Tharptown approached someone on Belgreen s team (either a player or Watson himself) and called the Belgreen tactics chickenshit. 137 Watson heard the statement and allegedly said that he would whip [the student s] ass. 138 After investigating the incident and interviewing both Watson and Tharptown s coach, Superintendent Williams was satisfied that Watson did not make the comment, and took no disciplinary action.139 C. The Transportation Director Vacancy The Board posted an opening for the Transportation Director position on April 22, 2010.140 According to the Subject and Personnel Codes developed by the Alabama State Department of Education ( the Codes ), the Transportation Director 135 See doc. no. 17-5 (Deposition of Gary Williams), at 36; doc. no. 17-3 (Deposition of Amy Moss), at 158. 136 Doc. no. 23-4 (Affidavit of Bart Moss), Ex. A (Facebook Messages), at ECF 11 (Message from Wes Borden), 13 (Message from Riley Hughes). 137 Id.; doc. no. 17-5 (Deposition of Gary Williams), at 37. 138 See doc. no. 23-4 (Affidavit of Bart Moss), Ex. A (Facebook Messages), at ECF 11-13 (Messages from Wes Borden, Wade Berryman, and Riley Hughes); doc. no. 17-3 (Deposition of Amy Moss), at 158-59. 139 Doc. no. 17-5 (Deposition of Gary Williams), at 36-39. 140 Plaintiffs Facts ¶ 22; doc. no. 17-2 (Exhibits to Deposition of Resa Witt), Ex. 3 (Transportation Director Posting), at ECF 9. The parties refer to the position as Transportation Director, although the job posting calls the position Transportation Supervisor. Because the difference is not consequential, the court will use the parties terminology. 26 is responsible for supervising the transportation of students to and from school. 141 The Codes required that an applicant have at least one of several, enumerated educational certificates.142 An administrative degree was a prerequisite for the position, and administrative experience was preferred.143 The Board listed several duties associated with the position, such as: developing and administering a transportation program for the county; preparing bus routes; and supervising all transportation personnel.144 Moss, Witt, and Donald Borden (who was also serving as Assistant Superintendent of the County School System) applied for the position.145 All three candidates had the proper certification and education, although plaintiffs had more education than Borden, and Borden had more administrative experience than plaintiffs.146 Twelve years earlier, however, in 1998, the Board had fired Borden as principal of Phil Campbell High School for allegedly cheating on a teacher-evaluation 141 Doc. no. 17-10 (Affidavit of Sarah Justiss), Ex. A (Excerpts of Subject and Personnel Codes ), at ECF 9. 142 Id.; see also Plaintiffs Facts ¶ 28. 143 Plaintiff s Facts ¶ 28. 144 Doc. no. 23-19 (Job Postings and Descriptions of Various Positions), at ECF 7 (Job Description for Transportation Director). 145 Doc. no. 17-3 (Deposition of Amy Moss), at 102-03; doc. no. 17-5 (Deposition of Gary Williams), at 70; doc. no. 17-6 (Deposition of Donald Borden), at 21; doc. no. 17-1 (Deposition of Resa Witt), at 34-35. 146 Plaintiffs Facts ¶ 28. 27 training course.147 After consultation with officials at the Alabama State Department of Education in May of 2010, the Board assigned the duties of Transportation Director to Borden, who assumed the duties without any additional compensation.148 Those cost savings were important to the Board because of its strained financial situation.149 D. The East Franklin Junior High School Principal Vacancy The Board posted an opening for the position of East Franklin Junior High School principal on June 7, 2010.150 The position required a master s degree, a certification in school administration, and three years of teaching experience; supervisory experience was recommended.151 Like the Transportation Director position, the Codes published by the Alabama State Department of Education required a principal to have at least one of several types of educational certificates.152 Moss, Witt, and Scott Wiginton (who then was an agri-science teacher at Phil Campbell High School) applied for the position.153 Each candidate possessed the necessary certifications and degrees, but both Moss and Witt had more years of 147 Doc. no. 17-6 (Deposition of Donald Borden), at 10-12. 148 Defendant s Facts ¶¶ 30-32, 35. 149 Id. ¶ 33. 150 Plaintiffs Facts ¶ 15. 151 Id. ¶ 17; doc. no. 23-19 (Job Postings and Descriptions), at ECF 5 (Job Description for Junior High School Principal). 152 Plaintiffs Facts ¶ 16. 153 Id. ¶ 15; doc. no. 23-10 (Deposition of Scott Wiginton), at 11-12. 28 education than Wiginton, and Witt also had more teaching experience.154 The Board ultimately hired Wiginton during the summer of 2010.155 The Board allegedly considered Wiginton to be the superior applicant because, during his teaching tenure, he had cultivated positive relationships with the public, parents, students, co-workers, and administrators.156 The Board viewed Wiginton as someone who possessed the interpersonal skills necessary to establish good rapport with students and parents and, thus, to facilitate broad support for the school in the community.157 The Board thought that such support was especially important given the school system s financial difficulties.158 One incident, however, detracted from Wiginton s otherwise solid record.159 In February of 2005, five years before Wiginton was hired as principal, Marcus Swinney and Tyler Messer both of whom were Phil Campbell students at the time were loitering inside the school s greenhouse when Messer began playing with its exhaust fan switch.160 Wiginton saw Messer and yelled at him to stop playing with 154 Plaintiffs Facts ¶ 16-18. 155 Defendant s Facts ¶ 42. 156 Id. ¶ 43. 157 Id. ¶ 45. 158 Id. 159 When asked in her deposition if there was anything else besides that particular circumstance that is, the incident currently under discussion that detracts from Wiginton s rapport with students, Witt responded [n]ot that I can think of. Doc. no. 17-1 (Deposition of Resa Witt), at 108-09 (alteration supplied). 160 Doc. no. 23-9 (Affidavit of Marcus Swinney) ¶ 2; doc. no. 23-10 (Deposition of Scott 29 the switch, apparently because the thermostat previously had been broken.161 When Messer did not comply, Wiginton tossed a chair at him; and, as both students scrambled for the door, he threw a garbage can at Swinney.162 The garbage can hit Swinney, knocked him down, and left a red mark on his back.163 After the incident, Swinney s father spoke with Wiginton,164 although the content of that conversation is not clear. Swinney, Swinney s mother, Wiginton, and Williams also held a conference (at the time, Bill Moss was superintendent, and Williams was his deputy).165 During their depositions, Williams did not remember the incident, and Wiginton was not aware of any investigation or reprimand.166 E. The Career-Technical Director/Evaluation Coordinator Position The Board posted an opening for the position of Career Technical Director/Evaluation Coordinator on June 30, 2010.167 Orval Seay had held the title Wiginton), at 32. 161 Doc. no. 23-9 (Affidavit of Marcus Swinney) ¶ 2; doc. no. 23-10 (Deposition of Scott Wiginton), at 32. 162 Doc. no. 23-9 (Affidavit of Marcus Swinney) ¶ 3. Wiginton testified that he kicked the garbage can, but not at Swinney, and that it did not hit him. Doc. no. 23-10 (Deposition of Scott Wiginton), at 32-33. 163 Doc. no. 23-9 (Affidavit of Marcus Swinney) ¶ 3. 164 Doc. no. 23-10 (Deposition of Scott Wiginton), at 34-35. 165 Id. at 33-34. 166 Doc. no. 17-5 (Deposition of Gary Williams), at 75-76, 146; doc. no. 23-10 (Deposition of Scott Wiginton), at 34, 36. 167 Doc. no. 23-19 (Job Postings and Descriptions of Various Positions), at ECF 2 (Job Posting for Career Technical Director/Evaluation Coordinator). 30 of Career Technical Director since 1988, and assumed the duties of Evaluation Coordinator in 1997.168 1. Qualifications for the position a. The career-technical director portion of the position The career-technical director portion of the position entailed, among other duties, publicizing information about the Board s career-technical education program, preparing a budget for that program, and supervising the operations of the CareerTechnical Center.169 The Board required a master s degree, a certification in careertechnical administration, and five years of teaching or supervisory experience in career-technical education.170 The Board had required all but the master s degree for at least ten years.171 The Alabama State Department of Education issues the career-technical administration certificate, which satisfies the Department s certification requirement for a career-technical director.172 Yet that certificate is just one of several types of certificates that the Department s Subject and Personnel Codes recognize as appropriate for the career-technical director position. One such alternative certificate 168 Doc. no. 23-15 (Affidavit of Orval Seay) ¶ 2. 169 Doc. no. 23-19 (Job Postings and Descriptions of Various Positions), at ECF 3 (Job Description for Career Technical Director/Evaluation Coordinator). 170 Id.; see Defendant s Facts ¶ 48. 171 Defendant s Facts ¶ 48. 172 Id. ¶¶ 49-50. 31 is the educational administrator certificate. 173 County boards of education may require additional qualifications that supplement those required by the State,174 as the Board apparently did when it required a master s degree and five years of teaching or supervisory experience in careertechnical education.175 Nevertheless, it is not clear whether a local school board can exclude a credential that the State Department s Codes establish as a qualification for a position. Thus, the court will assume that a school board cannot do so. Consequently, either the educational administrator certificate or the careertechnical administrative certificate met the certificate requirement for the careertechnical director portion of the position. In fact, Superintendent Williams admitted to Witt that the Board s acceptance of only the career-technical administrative certificate for the position needs to be changed, because it really restricts our pool of applicants. 176 Williams did not change the requirement unilaterally, however, because the job had already been posted, and he didn t feel like in the middle of a 173 Plaintiffs Facts ¶ 9. 174 Id. ¶ 11; see also doc. no. 23-20 (Emails between Resa Witt and Dr. Jayne A. Meyer); doc. no. 17-5 (Deposition of Gary Williams), at 66-67. 175 See doc. no. 23-16 (Alabama State Department of Education Subject and Personnel Codes), at ECF 15 (not requiring a master s degree or experience for the career-technical director position). 176 Doc. no. 17-5 (Deposition of Gary Williams), at 65-66. Witt telephoned several (but not all) colleges in Alabama about the availability of the career-technical administrative certificate, but none of them offered it. Doc. no. 17-1 (Deposition of Resa Witt), at 56-65. 32 posting we could go back and change a job description. 177 b. The evaluation coordinator portion of the position The Board s practice appended the supplemental duties of coordinating the school system s employee evaluations to the career-technical director position.178 The evaluation coordinator s duties included ensuring that all teachers were evaluated every three years, compiling those evaluations, and providing them to principals and assistant principals in the school system.179 Orval Seay described his former position as encompassing supervisi[on] and coordinat[ion of] the professional evaluation of all administrators and teachers in grades . . . K-12 for the school system. 180 The State Department of Education s Subject and Personnel Codes do not list evaluation coordinator as a position.181 Instead, the Codes describe a coordinator position an individual who oversees all aspects of an education program and an evaluator position an individual responsible for evaluating . . . employee performance. 182 According to the Codes, coordinator and evaluator share the 177 Doc. no. 17-5 (Deposition of Gary Williams), at 66. 178 Defendant s Facts ¶ 52. 179 Doc. no. 17-7 (Deposition of Herbert Truelove), at 22-24. 180 Doc. no. 23-15 (Affidavit of Orval Seay) ¶ 3 (alterations supplied). 181 See doc. no. 23-16 (Alabama State Department of Education Subject and Personnel Codes). 182 See id. at ECF 17. 33 same certification requirements.183 The Board, then, appears to have combined those two roles, and the court will apply the requirements of the Codes to the evaluation coordinator portion of the position. Several different types of certificates satisfy the requirements of the Codes, including an educational administrator certificate.184 2. The applicants Witt, Moss, and Herbert Truelove (who then was an agri-science education teacher at Red Bay High School) applied for the career-technical director/evaluation coordinator position.185 All three applicants had the requisite master s degree. Witt and Moss had higher levels of education, but Truelove had undergraduate and master s degrees in the agri-science field.186 Further, Witt and Moss both possessed an educational administrator certificate, but lacked a career-technical administrative certificate.187 Truelove, conversely, had a career-technical administrative certificate, but lacked an educational administrator certificate.188 Thus, even though all three applicants met the certification requirement for the career-technical director portion of the position, Truelove did not meet the 183 Id. 184 Id. 185 Plaintiffs Facts ¶ 7; doc. no. 17-7 (Deposition of Herbert Truelove), at 15-16. 186 Doc. no. 17-1 (Deposition of Resa Witt), at 13-16; doc. no. 17-3 (Deposition of Amy Moss), at 15; doc. no. 17-7 (Deposition of Herbert Truelove), at 7. 187 See Plaintiffs Facts ¶¶ 3, 6. 188 Doc. no. 23-17 (Certificates), at ECF 3 (Ruie Herbert Truelove Certificate Details). 34 certification requirement for the evaluation coordinator portion of the position, at least as stated by the Codes.189 (Truelove instead received faculty evaluation training through two workshops offered by the Alabama Professional Educational Personnel Evaluation Program.190) Even so, although the State Department of Education imposes penalties on school systems that employ administrators who lack the proper certification, the Board did not receive such penalties for employing Truelove.191 At the time of his application, Truelove had superior teaching or supervisory experience in career-technical education, because he had taught agri-science education at Red Bay High School for twenty-three years.192 In contrast, Witt taught career exploration classes for two or three years in Franklin County, and a computerdiscovery vocational class for three years in Tishomingo County, Mississippi.193 Finally, Moss lacked the requisite five years of teaching or supervisory experience in career-technical education.194 189 Compare doc. no. 23-16 (Alabama State Department of Education Subject and Personnel Codes), at ECF 17 (listing certificates that meet requirements for coordinator or evaluator) with doc. no. 23-17 (Certificates), at ECF 3 (Ruie Herbert Truelove Certificate Details). 190 Doc. no. 17-7 (Deposition of Herbert Truelove), at 20-21, 30. 191 Defendant s Facts ¶ 55. 192 Id. at 15. 193 Doc. no. 17-1 (Deposition of Resa Witt), at 20-23, 78-79. 194 Defendant s Facts ¶ 56 (admitted only as to Moss s teaching experience); see also doc. no. 17-3 (Deposition of Amy Moss), at 126-27 (admitting that, as of 2010, Moss had no teaching or supervisory experience in career-technical education). 35 The Board hired Truelove at its July 15, 2010 meeting without an interview.195 Superintendent Williams testified that Truelove was hired over Witt and Moss because he was the only applicant that applied for the position who had the career-technical administrative certificate.196 Truelove receives a salary supplement for the duties associated with the evaluation coordinator portion of the position.197 F. Assistant Principal at Tharptown High School On June 7, 2010, the Board posted an opening for a half-time assistant principal position at Tharptown High School.198 Although Witt applied for the position, the Board hired Cynthia Forsythe, another female, who was working full-time in the Board s central office.199 Upon receiving the position, Forsythe began working a halfday at Tharptown and a half-day in the central office.200 The arrangement allowed the Board to save costs, because Forsythe assumed the duties of assistant principal without additional compensation, and the Board did not have to hire an additional employee.201 195 Plaintiffs Facts ¶ 7. 196 Doc. no. 17-5 (Deposition of Gary Williams), at 65. 197 Defendant s Facts ¶ 51. 198 Id. ¶ 38; doc. no. 17-2 (Exhibits to Deposition of Resa Witt), Ex. 33 (Posting for Tharptown Assistant Principal Position), at ECF 8. 199 Defendant s Facts ¶¶ 39-40. 200 Id. ¶ 39. 201 Id. ¶ 41. 36 G. Plaintiffs Working Conditions Since Filing Their EEOC Charges Plaintiffs filed charges of gender discrimination against the Board with the Equal Employment Opportunity Commission ( EEOC ) on July 26, 2010.202 The Board learned of Moss s charge on August 2, 2010, and of Witt s charge the following day.203 1. Moss s planning period In the summer of 2009, Gary Odum then the assistant principal at Phil Campbell High School approached Moss about the need for someone to teach a class at Phil Campbell Elementary School, which is located behind the high school on the same campus.204 Moss said that she would be willing to teach the class during the first period of each day, but only on the condition that he allowed her to schedule her planning period for the second period of the day, in order that she would not have to rush back to the high school.205 At that time, Moss discussed the arrangement only with Odum, who made each teacher s class schedule.206 During the 2009-10 school year, Moss s planning period was indeed scheduled for the second period of each day, but the following year, her planning period was not 202 Plaintiffs Facts ¶ 43. Id. 204 Doc. no. 17-3 (Deposition of Amy Moss), at 179, 181; doc. no. 17-5 (Deposition of Gary Williams), at 23. 203 205 Doc. no. 17-3 (Deposition of Amy Moss), at 180. 206 Id. at 181. 37 set immediately after her class at the elementary school.207 Moss learned of that change when she received the 2010-11 schedule on July 27, 2010: i.e., the day after she filed her EEOC charge, but about one week before the Board learned of the charge.208 Moss sent an email to Principal Davis on July 29, 2010, explaining her prior understanding with Odum, and requesting that her planning period be rescheduled.209 Davis responded that she was not aware of the prior arrangement between Moss and Odum, but that she was working on changing the schedule.210 Moss s planning period was ultimately not rescheduled, because doing so would have required rearranging the schedule for the entire school.211 Moss filed a grievance over the issue on August 12, 2010.212 Principal Davis denied the grievance on August 18th, and Assistant Superintendent Borden and Superintendent Williams upheld Davis s decision on September 3rd and October 4th, respectively.213 The grounds for those decisions were that: no one else knew of 207 Id. at 183-84; doc. no. 17-5 (Deposition of Gary Williams), at 125. 208 See doc. no. 17-3 (Deposition of Amy Moss), at 184-86. 209 Id. at 185-87; doc. no. 17-4 (Exhibits to Deposition of Amy Moss), Ex. 9 (Emails between Amy Moss and Cindy Davis), at ECF 22-23. 210 Doc. no. 17-4 (Exhibits to Deposition of Amy Moss), Ex. 9 (Emails between Amy Moss and Cindy Davis), at ECF 22; see also doc. no. 17-5 (Deposition of Gary Williams), at 125-26. 211 Doc. no. 17-5 (Deposition of Gary Williams), at 126. 212 Doc. no. 23-2 (Affidavit of Amy Moss) ¶ 61; doc. no. 17-4 (Exhibits to Deposition of Amy Moss), Ex. 10 (Amy Moss Grievance and Accompanying Documents), at ECF 27-33. 213 Doc. no. 17-4 (Exhibits to Deposition of Amy Moss), Ex. 10 (Amy Moss Grievance and Accompanying Documents), at ECF 30-33. 38 Moss s prior arrangement with Odum; rearranging the schedule at that time would have imposed an unfair hardship on the entire school; and Moss s schedule provided ample time (sixteen minutes) for her to travel from the elementary school to the high school, especially given that the schools shared a common campus.214 Davis and Williams each pledged to attempt to accommodate Moss s request to schedule her planning period for the second period of each day in future schedules, and Moss received that accommodation during the subsequent, 2011-12 school year.215 When Superintendent Williams issued the final denial of Moss s grievance on October 4, 2010, he told Moss that she could bring the issue before the Board at its next meeting on October 12 of the same year.216 The Board heard Moss s position in an executive session, during which Moss alleged that the request of a male colleague for a schedule change had been accommodated, but that hers had not.217 Williams told Moss to quit bringing that male crap up you ain t got nothing, and your male crap ain t no good. 218 2. Moss s classroom materials 214 Id. Id. at ECF 30, 32; doc. no. 17-5 (Deposition of Gary Williams), at 126; doc. no. 17-3 (Deposition of Amy Moss), at 199. 215 216 Doc. no. 17-4 (Exhibits to Deposition of Amy Moss), Ex. 10 (Amy Moss Grievance and Accompanying Documents), at ECF 33; Plaintiffs Facts ¶ 45. 217 Plaintiffs Facts ¶ 45; doc. no. 17-5 (Deposition of Gary Williams), at 127-28. 218 Doc. no. 23-2 (Affidavit of Amy Moss) ¶ 62; see also doc. no. 17-5 (Deposition of Gary Williams), at 128. 39 Beginning sometime in 2011, Moss s mobile classroom lacked certain basic materials, such as classroom partitions, tables, desks, and a computer.219 Apparently, at least some of the materials allocated to Moss s classroom were destroyed by the tornados that swept through Alabama during April of 2011.220 After Moss began requesting replacement materials on August 11, 2011, she received desks on August 24, 2011, and a computer sometime after September 14 of the same year.221 However, she had not received classroom partitions as of April 1st of the following year, and the record is not clear on whether she has received tables as of the end of the briefing schedule.222 3. Moss s meeting with Williams and Davis on October 20, 2010 Moss was called to a meeting with Superintendent Williams and Principal Davis in Davis s Phil Campbell High School office on October 20, 2010.223 Williams initially wanted to discuss Moss s EEOC charge, but Moss refused to do so without the presence of counsel.224 Williams then said that he had something else for Moss, 219 Doc. no. 23-2 (Affidavit of Amy Moss) ¶ 71. 220 Doc. no. 17-14 (Exhibits to Deposition of Amy Moss), Ex. 18 (Emails between Amy Moss and Various Administrators), at ECF 40-41 (regarding water damage to Moss s computer). 221 Doc. no. 23-2 (Affidavit of Amy Moss) ¶¶ 71-72; doc. no. 17-3 (Deposition of Amy Moss), at 229 ( When Matt came to hook up my computer . . . ); doc. no. 17-14 (Exhibits to Deposition of Amy Moss), Ex. 18 (Emails between Amy Moss and Various Administrators), at ECF 40-41 (emails sent on September 14, 2011 regarding Moss s computer). 222 Doc. no. 23-2 (Affidavit of Amy Moss) ¶ 72. 223 Id. ¶ 64. 224 Id.; doc. no. 17-3 (Deposition of Amy Moss), at 167. 40 and pulled out a letter dated October 7, 2010 from Davis to Williams,225 which reported a conversation between Davis and Phil Campbell teacher Bo Culver during the spring of that year.226 According to the letter, Culver witnessed an incident between Moss and a student in the fall of 2009, during which Moss instructed a student to throw away a cardboard box but, when the student protested that he (or she) would be late for class, Moss replied, throw this away, you asshole. 227 When Williams indicated that he was prepared to issue a reprimand, Moss denied the incident and left the room to call Jonathon Jones, an EEOC investigator, who said that he would contact Danny McDowell, an attorney for the Board.228 Jones later assured Moss that she would not be reprimanded, and Moss admits that she never received a reprimand for the alleged incident.229 4. Extra assignments for Moss Moss only taught physical education classes at Phil Campbell High School from 2005 to 2010.230 However, Principal Davis assigned Moss to teach a health class in 225 Doc. no. 17-3 (Deposition of Amy Moss), at 212-13, 169; doc. no. 17-4 (Exhibits to Deposition of Amy Moss), Ex. 15 (Cindy Davis s Letter of Oct. 7, 2010 to Gary Williams), at ECF 37. 226 Doc. no. 17-4 (Exhibits to Deposition of Amy Moss), Ex. 15 (Cindy Davis s Letter of Oct. 7, 2010 to Gary Williams), at ECF 37. 227 Id. 228 Doc. no. 17-3 (Deposition of Amy Moss), at 169-73, 330-31, 328-30; doc. no. 23-2 (Affidavit of Amy Moss) ¶ 68. 229 Id. at 171, 329, 332; see also id. at 169-71, 329-34. 230 Doc. no. 23-2 (Affidavit of Amy Moss) ¶ 73. 41 2011, and a basic skills class in 2012.231 Due to those changes in her teaching assignments, Moss had to undertake additional class preparation, lesson-planning, and paper-grading.232 Even so, those changes have not resulted in her teaching a greater number of classes or hours.233 5. Extra Assignments for Witt Witt makes the general claim that she was assigned extra duties. No other teachers were on the list for extra duties. 234 In an email dated February 24, 2012, Witt described her discussions with Principal Davis on February 22nd and 23rd on the subject of her afternoon bus duty.235 On February 22nd, Davis instructed Witt to move her observation spot down several feet from her usual location.236 The following day, Davis again approached Witt during bus duty, and told her that several of her students were loitering by the school steps, a criticism that Witt thought unfair, because teachers on bus duty are supposed to take their students with them.237 Witt also objected to the fact that she was assigned bus duty with no help, because the other 231 Id.; see also doc. no. 17-3 (Deposition of Amy Moss), at 24-25. 232 Doc. no. 23-2 (Affidavit of Amy Moss) ¶ 73. 233 Doc. no. 17-3 (Deposition of Amy Moss), at 25-26. 234 Doc. no. 23-12 (Declaration of Resa Witt) ¶ 30. 235 See doc. no. 23-30 (Extra Assignments), at ECF 2-3 (Resa Witt Email of Feb. 24, 2012 to John Saxon and Molly Murphy). 236 Id. at ECF 2. 237 Id. at ECF 2-3. 42 teacher on duty, Darit Riddle, had been allowed to leave in order to coach a game.238 As evidence of other extra duties, Witt cites her teaching schedule for April 6th (the year of the schedule is not apparent), which set the ninth-grade students for a field trip to the Career Technical Center with Coach Pounders, Coach [Kelly] Kiser, and Coach [Darit] Riddle. 239 Because the field trip was held during the fifth, sixth, and seventh periods of the day, the schedule also assigned several teachers to cover Kiser s fifth through seventh period classes.240 Witt was assigned to cover twenty minutes of Kiser s sixty-five minute fifth period class (another teacher took the remainder), and to cover thirteen minutes of Kiser s seventh period class.241 Moss was assigned to cover twenty-seven minutes of Kiser s sixth period class.242 6. Witt s classroom conditions During the winter of 2010, Witt and others were frequently ill, and had sores in their noses conditions that Witt believed might be caused by the source of an unpleasant odor that emanated from beneath the hallway near her classroom at Phil Campbell High School.243 In late November or early December of 2010, the janitor 238 Id. 239 Id. at ECF 4 (Schedule of April 6th) (alterations supplied); doc. no. 23-30 (Extra Assignments), at ECF 4 (Resa Witt Email of Feb. 24, 2012 to John Saxon and Molly Murphy). 240 Id. Id. 242 Id. 243 Doc. no. 17-1 (Deposition of Resa Witt), at 307. 241 43 investigated the smell, and discovered that fumes were leaking from an old sewer system under the school.244 The leak was repaired soon thereafter.245 Further, Phil Campbell was heated by a central boiler unit, which prevented Witt from personally adjusting the temperature in her classroom.246 When Witt arrived at school on December 13, 2010, the temperature in her classroom was thirtyeight degrees.247 Principal Davis was not at school, so Witt emailed Superintendent Williams.248 Witt eventually spoke with Davis, who said that the heat would be turned on when the weather got a little colder.249 Meanwhile, the lack of heat continued for several days. 250 Once the heat was turned on, it took several hours to warm the classroom. Further, the central boiler unit often caused the classroom to overheat.251 On December 13, 2010, the day she emailed Superintendent Williams about the 244 Doc. no. 17-1 (Deposition of Resa Witt), at 310-12, 314-15; doc. no. 23-12 (Declaration of Resa Witt) ¶ 31; see also doc. no. 17-2 (Exhibits to Deposition of Resa Witt), Ex. 37 (Emails of Dec. 13, 2010 between Resa Witt and Donald Borden), at ECF 72 (referencing the elimination of the sewer odor). 245 Doc. no. 17-1 (Deposition of Resa Witt), at 314; doc. no. 17-2 (Exhibits to Deposition of Resa Witt), Ex. 37 (Emails of Dec. 13, 2010 from Resa Witt and Donald Borden), at ECF 72. 246 Doc. no. 17-1 (Deposition of Resa Witt), at 306. 247 Id. at 306-07; doc. no. 17-2 (Exhibits to Deposition of Resa Witt), Ex. 36 (Email of Dec. 13, 2010 from Resa Witt to Gary Williams), at ECF 65. 248 Doc. no. 17-2 (Exhibits to Deposition of Resa Witt), Ex. 36 (Email of Dec. 13, 2010 from Resa Witt to Gary Williams), at ECF 71. 249 Doc. no. 17-1 (Deposition of Resa Witt), at 307; doc. no. 23-12 (Declaration of Resa Witt) 250 Doc. no. 17-1 (Deposition of Resa Witt), at 308-09. 251 Id. at 307-09; doc. no. 23-12 (Declaration of Resa Witt) ¶ 32. ¶ 32. 44 temperature, Witt also emailed Assistant Superintendent Borden about what she believed to be black mold in the basement rooms beneath her classroom.252 Borden responded that the county Health Inspector, as well as several others presumably addressing the odor issue had surveyed the area two weeks previously, and had not seen any mold.253 Still, Borden instructed the school janitor to spray the area as a precaution.254 According to Witt, that treatment eliminated some, but not all, of the mold.255 7. Witt s need to attend a make-up faculty meeting Phil Campbell High School holds weekly faculty meetings each Tuesday afternoon.256 Because coaches have practice during that time, and cannot attend the meetings, a make-up faculty meeting is held on Friday mornings.257 On Tuesday, October 12, 2010, Witt informed Principal Davis that she would not be able to attend that afternoon s faculty meeting because of an appointment, but that she would attend the make-up meeting on Friday.258 Davis responded by chiding Witt: I have asked 252 Doc. no. 17-2 (Exhibits to Deposition of Resa Witt), Ex. 37 (Emails of Dec. 13, 2010 between Resa Witt and Donald Borden), at ECF 72. 253 Id. 254 Id.; doc. no. 23-12 (Declaration of Resa Witt) ¶ 34; doc. no. 17-1 (Deposition of Resa Witt), at 313. 255 Doc. no. 17-1 (Deposition of Resa Witt), at 312-13; doc. no. 23-12 (Declaration of Resa Witt) ¶ 34. 256 Doc. no. 17-1 (Deposition of Resa Witt), at 145. 257 Id. at 145-46. 258 Id. at 146-47; doc. no. 17-2 (Exhibits to Deposition of Resa Witt), Ex. 12 (Emails of Oct. 45 the entire faculty to refrain from making appointments on the days we have designated for staff meetings. Your absences will be considered unexcused and you will be considered insubordinate if this behavior continues. 259 Witt explained that she needed to transport her mother-in-law home, following her release from the hospital, and that Witt could not control when the hospital released her.260 After Principal Davis learned of the basis for Witt s request to attend the make-up faculty meeting, she agreed that the make-up meeting is designed for such circumstances, and that Witt had a valid excuse.261 But Davis also told Witt, without further elaboration, that the pattern of your behavior throughout the school year could be cause for concern. 262 Nevertheless, Witt acknowledged that she was allowed to attend the Friday morning make-up meeting, and that she was not reprimanded for missing the normal Tuesday afternoon meeting.263 8. Witt s student load At the start of the 2010-11 school year, Witt realized that she had a total of 12, 2010 between Resa Witt and Cindy Davis), at ECF 23-24. 259 Doc. no. 17-1 (Deposition of Resa Witt), at 146-49; doc. no. 17-2 (Exhibits to Deposition of Resa Witt), Ex. 12 (Emails of Oct. 12, 2010 between Resa Witt and Cindy Davis), at ECF 23. 260 Id. 261 Id. 262 Doc. no. 17-1 (Deposition of Resa Witt), at 153; doc. no. 17-2 (Exhibits to Deposition of Resa Witt), Ex. 12 (Emails of Oct. 12, 2010 between Resa Witt and Cindy Davis), at ECF 23. 263 Doc. no. 17-1 (Deposition of Resa Witt), at 155-58, 166-167. 46 approximately 150 students in her classes.264 Witt felt that her student load was not equitable, because the two other mathematics teachers at Phil Campbell High School had thirty to fifty fewer students.265 Significantly, however, Witt had had similar student loads in the past, including during the previous school year.266 Witt suggested eliminating the disparity by switching students or teachers for certain classes.267 Witt emailed Superintendent Williams on August 8, 2010 in order to make him aware of the situation, and Williams agreed that the number of students in some of Witt s classes was not the best situation. 268 Williams then said that he would speak with Principal Davis, and hoped that Davis and the school guidance counselor could find a solution.269 Ultimately, the school guidance counselor informed Witt that her recommended schedule changes could not be implemented.270 9. Discipline for Witt s students In November of 2010, Witt began having disciplinary issues with a male 264 Id. at 170-71, 176-77; doc. no. 17-2 (Exhibits to Deposition of Resa Witt), Ex. 15 (Emails of Aug. 8-9, 2010 between Resa Witt and Gary Williams), at ECF 27. 265 Doc. no. 17-1 (Deposition of Resa Witt), at 170-71; doc. no. 17-2 (Exhibits to Deposition of Resa Witt), Ex. 15 (Emails of Aug. 8-9, 2010 between Resa Witt and Gary Williams), at ECF 27. 266 Doc. no. 17-1 (Deposition of Resa Witt), at 171, 175, 183-84; doc. no. 17-2 (Exhibits to Deposition of Resa Witt), Ex. 15 (Emails of Aug. 8-9, 2010 between Resa Witt and Gary Williams), at ECF 27. 267 Doc. no. 17-1 (Deposition of Resa Witt), at 171-73, 178, 180. 268 Doc. no. 17-2 (Exhibits to Deposition of Resa Witt), Ex. 15 (Emails of Aug. 8-9, 2010 between Resa Witt and Gary Williams), at ECF 27. 269 270 Id. Doc. no. 17-1 (Deposition of Resa Witt), at 173. 47 student identified as E.B. 271 On November 5, 2010, Witt sent E.B. to the office for disobedience, and the administration arranged a conference attended by Witt, Principal Davis, the student s mother, and several others.272 On November 8th of the same year, Witt again reported E.B. to the administration, this time for bullying.273 E.B. received corporal punishment ( 3 licks ) for his behavior, the same punishment he received on November 18th for disrupting the classroom of another teacher.274 When the other teacher again reported E.B. to the administration in February of 2011 this time for theft of school property E.B. was suspended.275 Unfortunately, E.B. s conduct did not improve, and on March 17, 2011, he drew his fist back at Witt in a threatening manner.276 As a result of the incident, Witt was told that E.B. would be suspended for two days, and he was indeed absent from class the following day, although it is not clear whether his absence was due to suspension or some other reason.277 Witt filed a police report for harassment against E.B. on 271 Id. at 186-87, 200. 272 Id. at 193-94; doc. no. 17-2 (Exhibits to Deposition of Resa Witt), Ex. 17 (Student Discipline Report of E.B.), at ECF 35. 273 Doc. no. 17-2 (Exhibits to Deposition of Resa Witt), Ex. 16 (Discipline Reports), at ECF 28; doc. no. 17-1 (Deposition of Resa Witt), at 187-88. 274 Doc. no. 17-2 (Exhibits to Deposition of Resa Witt), Ex. 17 (Student Discipline Report of E.B.), at ECF 35; doc. no. 17-1 (Deposition of Resa Witt), at 195-96. 275 Doc. no. 17-2 (Exhibits to Deposition of Resa Witt), Ex. 17 (Student Discipline Report of E.B.), at ECF 35; doc. no. 17-1 (Deposition of Resa Witt), at 196-97. 276 Doc. no. 17-2 (Exhibits to Deposition of Resa Witt), Ex. 25 (Sheriff s Department Incident Report), at ECF 47-49; doc. no. 17-1 (Deposition of Resa Witt), at 236-37. 277 Doc. no. 17-2 (Exhibits to Deposition of Resa Witt), Ex. 25 (Sheriff s Department 48 March 18th, noting that she had been having trouble with E.B. for the last five months : that is, since November of 2010.278 Witt ultimately did not file charges against E.B.279 Witt s disciplinary problems with other students continued into 2011. When several male students disturbed her class on February 17, 2011, Witt asked for them to be suspended.280 However, after discussing Witt s request on February 18th, Assistant Principal Darit Riddle and Principal Davis instead decided to hold a conference attended by themselves, Witt, and the students parents.281 Riddle also told Witt that, [i]n the meantime, [Principal] Davis or I will be observing your 3rd period class in an effort to monitor the behavior of these students and to stop these students from hindering other students and make it easier on you to teach the class. 282 Witt emailed Superintendent Williams twice within hours of learning of that decision.283 Witt s first message stated that she had reported students for disciplinary reasons on numerous [occasions,] and they either get a paddling or break detention. Incident Report), at ECF 47-49; Deposition of Resa Witt, at 236-38. 278 Doc. no. 17-2 (Exhibits to Deposition of Resa Witt), Ex. 25 (Sheriff s Department Incident Report), at ECF 47-49; doc. no. 17-1 (Deposition of Resa Witt), at 236-37. 279 Doc. no. 17-1 (Deposition of Resa Witt), at 239. 280 Doc. no. 17-2 (Exhibits to Deposition of Resa Witt), Ex. 20 & 21 (Emails of Feb. 18, 2011 between Resa Witt and Gary Williams), at ECF 39-41. 281 Id., Ex. 22 (Email of Feb. 18, 2011 from Darit Riddle to Resa Witt), at ECF 42. 282 Id. (alteration supplied); see also doc. no. 17-1 (Deposition of Resa Witt), at 216-17. 283 Doc. no. 17-2 (Exhibits to Deposition of Resa Witt), Ex. 20, 21 & 23 (Emails of Feb. 18, 2011 between Resa Witt and Gary Williams), at ECF 39-41, 43. 49 [Holding a conference] does not work for senior boys who are defiant and hateful[.] 284 Witt also complained that when other teachers reported their students for having behavioral problems, the administration disciplined the students differently.285 Further, Witt disagreed with having an administrator observe her classroom, despite her admission that the presence of an administrator prevented students from misbehaving.286 Witt noted that other teachers who had disciplinary problems with students were not observed, and expressed her belief that observation was an intimidation tactic, because it conveyed to the students that Witt had done something wrong.287 In closing, Witt told Williams: I hope this is not retaliation against me, but it definitely appears to be. 288 In her second email message, Witt forwarded to Superintendent Williams the email chain that discussed the disciplinary decision by Assistant Principal Riddle and Principal Davis. Williams immediately responded that he regretted the behavioral issues in Witt s classroom, and would speak with Riddle and Davis to find a 284 Doc. no. 17-2 (Exhibits to Deposition of Resa Witt), Ex. 20 & 21 (Emails of Feb. 18, 2011 between Resa Witt and Gary Williams), at ECF 39-41 (alterations supplied). 285 Id. 286 Id.; doc. no. 17-1 (Deposition of Resa Witt), at 221-22. 287 Doc. no. 17-1 (Deposition of Resa Witt), at 221-23. 288 Doc. no. 17-2 (Exhibits to Deposition of Resa Witt), Ex. 20 & 21 (Emails of Feb. 18, 2011 between Resa Witt and Gary Williams), at ECF 39-41. 50 remedy. 289 In sum, Witt felt that the administration s response to her disciplinary complaints about E.B. and other students was less than its response to disciplinary complaints by other teachers, and that the subsequent observation of her classroom for three days was retaliation for her EEOC charge.290 IV. DISCUSSION Both plaintiffs allege that the Board did not promote them on the basis of their gender, and that it later retaliated against them for their acts of filing EEOC complaints of discrimination. Moss also asserts a claim for wrongful termination/disparate treatment based on her termination from her position as coach of the Phil Campbell High School varsity girls basketball team. The parties agree that plaintiffs have no direct evidence of intentional discrimination.291 As a consequence, this court will apply the framework established by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny. Under that framework, the plaintiff bears the initial burden of establishing a prima facie case of discrimination based on circumstantial evidence. 289 Id., Ex. 23 (Emails of Feb. 18, 2011 between Resa Witt and Gary Williams), at ECF 43. 290 See doc. no. 23-12 (Declaration of Resa Witt) ¶ 37; doc. no. 17-1 (Deposition of Resa Witt), at 191, 195-97, 208-10, 211-13, 215-224. 291 See doc. no. 16 (Brief in Support of Summary Judgment), at 14-29 (proceeding under the McDonnell Douglas framework for circumstantial evidence); doc. no. 23 (Response Brief in Opposition to Summary Judgment), at 20-31 (same); doc. no. 27 (Reply Brief in Support of Summary Judgment), at 10-23 (same). 51 Combs v. Plantation Patterns, 106 F.3d 1519, 1527-28 (11th Cir. 1997). A. Wrongful Termination/Disparate Treatment To establish a prima facie case of wrongful termination on the basis of a plaintiff s sex (i.e., a disparate treatment claim), the plaintiff must generally show that (1) plaintiff is a member of a protected class; (2) plaintiff suffered an adverse employment action; (3) the employer treated similarly situated employees outside of the protected class more favorably; and (4) plaintiff was qualified to do the job. Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1228 (11th Cir. 2002) (citing McDonnell Douglas, 411 U.S. at 802; Crapp v. City of Miami Beach, 242 F.3d 1017, 1020 (11th Cir. 2001)). The establishment of a prima facie case creates a presumption that the employer unlawfully discriminated against the employee. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). To rebut that presumption, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the [contested employment decision]. Burdine, 450 U.S. at 255 (alteration supplied). Further, the explanation provided must be legally sufficient to justify a judgment for the defendant, even though the defendant need not persuade the court that it was actually motivated by the proffered reasons. Id. at 254-55. If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and drops 52 from the case. Burdine, 540 U.S. at 255 n.10. [T]he plaintiff must then come forward with evidence, including the previously produced evidence establishing the prima facie case, sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision. [Chapman v. AI Transportation, 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc)] (quoting Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997)); see also Reeves, 530 U.S. at 143, 120 S. Ct. at 2106; Perryman, 698 F.2d at 1142. 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. Combs, 106 F.3d at 1538. Cooper v. Southern Co., 390 F.3d 695, 725 (11th Cir. 2004) (alterations supplied). The plaintiff must show that each of the proffered reasons are false, and that discrimination was the real reason for the defendant s decision. See Brooks v. County Commissioner of Jefferson County, 446 F.3d 1160, 1163 (11th Cir. 2006); Jackson v. State of Alabama Tenure Commission, 405 F.3d 1276, 1289 (11th Cir. 2005). A plaintiff is not allowed to recast an employer s proffered nondiscriminatory reasons or substitute his business judgment for that of the employer. Chapman, 229 F.3d at 1030; see also Combs, 106 F.3d at 1543. Provided that the proffered reason is one that might motivate 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. Chapman, 229 F.3d at 1030. Rebuttal requires that a plaintiff 53 present significant probative evidence on the issue to avoid summary judgment. Conclusory allegations of discrimination, without more, are not sufficient to raise an inference of pretext. Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1376 (11th Cir. 1996) (internal citations and quotations omitted); see also Chavez v. URS Federal Technical Services, Inc., No. 12-11037, 2013 WL 49722, *1 (11th Cir. Jan. 3, 2013). Moss easily satisfies three of the four elements of her prima facie case: she is a member of the protected class of female coaches; she was qualified for her coaching position; and she suffered an adverse employment action when she was terminated from the position. See Scott, 295 F.3d at 1228. The sole issue is whether the Board treated similarly situated employees outside of the protected class [i.e., male coaches] more favorably. Id. (alteration supplied). The comparators must be similarly situated in all relevant respects. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004) (emphasis supplied); see also Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). When, as here, a plaintiff alleges that her termination was a form of discriminatory discipline, the Eleventh Circuit require[s] that the quantity and quality of the comparator s misconduct be nearly identical to prevent courts from second-guessing employers reasonable decisions. Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir.1999)) (emphasis and alteration supplied); see also Burke-Fowler v. Orange County, Florida, 447 F.3d 1319, 1323 (11th Cir. 2006)). 54 Moss admits that the similarly situated standard is a high bar. 292 Even when construing the evidence in a light favorable to Moss, and making all reasonable inferences in her favor, several incidents do not speak well of her overall behavior or coaching demeanor. Moss generally refused to discuss with parents the playing time allowed their children, and informed one parent that she did not have to explain anything to him, and that if he didn t like her decisions on playing time, his daughter could quit the team.293 She told a former player to get the hell out of [her] face at a basketball game between two schools within the Board s jurisdiction.294 She threatened to permanently bench two senior players if they did not take action to quiet students who were chanting for those players to be allowed to play at Senior Night, their last home game.295 During the same game, she turned and yelled at the student section to shut up. 296 Superintendent Williams also received complaints from parents and members of the community about those incidents, as well as about Moss s general behavior and treatment of players.297 The complaints often 292 Doc. no. 23 (Response Brief in Opposition to Summary Judgment), at 27. 293 Defendant s Facts ¶ 10; doc. no. 17-3 (Deposition of Amy Moss), at 82; doc. no. 17-9 (Affidavit of Gary Williams), Ex. B (Statements Regarding Amy Moss), at ECF 22 (Statement of S.J. s Parents). 294 Defendant s Facts ¶ 18 (alteration supplied); see also Statements Regarding Amy Moss, at ECF 25 (Statement of K.M. s Grandmother). 295 Defendant s Facts ¶ 23. 296 Doc. no. 23-2 (Affidavit of Amy Moss) ¶ 13; doc. no. 17-1 (Deposition of Amy Moss), 297 See, e.g., doc. no. 17-5 (Deposition of Gary Williams), at 93 (describing Moss as going at 35. 55 portrayed the incidents as more severe than they are described above. Although the court does not accept those versions of the incidents as true, the content of the complaints is relevant to a determination of whether male coaches about whom Williams also received complaints were similarly situated. The only comparator who arguably satisfies the similarly situated standard is Darit Riddle. Moss also cites Bo Culver and Greg Watson as potential comparators,298 but those coaches, unlike Moss, were each involved in only a single incident. Culver once called a player brain dead and dumb as a bag of hammers after a poorly executed play.299 Watson threatened to whip an opposing player s ass. 300 One isolated incident does not rise to a level of misconduct that is nearly ballistic and swearing at a parent who inquired about his daughter s playing time); 96-97 ( I got calls from Jeff and Harold about [Moss having] the girls line up in a circle and put [J.H.] in the middle of it, saying that she caused them to lose the game. . . they were irate . . . she wouldn t talk to him . . . she told me she didn t talk to parents and that she wasn t going to talk to him. ), 98 ( [T.M. s] mother had called me at home. She was upset about Coach Moss mistreating her daughter[.] ), 103-04 ( The things I heard from [the community], I mean, it was like constant about the way Coach Moss was treating our kids. [Moreover, there was] probably eight to ten people that called me over [at a convenience store to tell me that Moss told the crowd to] shut the hell up. . . . [E]verybody in there was mad [about it.] ), 108 ( I received two or three more calls from people who were at the game where Moss told the crowd to shut the hell up. ); see also doc. no. 23-2 (Affidavit of Amy Moss) ¶ 6 (admitting that Williams mentioned the numerous complaints he had received about Moss when he asked for her resignation) (all alterations supplied). 298 Doc. no. 23 (Response Brief in Opposition to Summary Judgment), at 27-28. Moss also cites Bill Smith as a potential comparator, but the evidence that underpins the allegations against him has been stricken. See note 8, supra and accompanying text; doc. no. 28 (Response to Motion to Strike), at 8 (admitting that the affidavit of Riley Hughes should be stricken). 299 Doc. no. 17-3 (Deposition of Amy Moss), at 173-74, 354-55; see doc. no. 17-5 (Deposition of Gary Williams), at 123-24. 300 See doc. no. 23-4 (Affidavit of Bart Moss), Ex. A (Facebook Messages), at ECF 11-13 (Messages from Wes Borden, Wade Berryman, and Riley Hughes); doc. no. 17-3 (Deposition of 56 identical to that attributed to Moss in quantity and quality. Burke-Fowler, 447 F.3d at 1323. As for Riddle, he danced with students and another teacher at the 2010 prom in a manner described as humping, and he allegedly made inappropriate comments about a female player s breasts at a 2011 practice session ( it s nothing we haven t seen before, and give her some Band-Aids to put over those mosquito bites ). Conspicuously absent from Riddle s career is the history of complaints that was lodged by parents and other community members against Moss. Taking those differences into account, Moss has not established that she was similarly situated to Bo Culver, Greg Watson, or Darit Riddle, and her prima facie case fails.301 B. Failure to Promote Claims To establish a prima facie case of discriminatory failure to promote, a plaintiff Amy Moss), at 158-59. 301 Moss also cannot show pretext. The Board claims that it terminated Moss as a result of her pattern of behavior towards student-athletes and parents. Moss devotes three sentences of argument to rebutting that reason as pretextual. Doc. no. 23, at 28-29. She cites evidence most of which either is irrelevant, has been stricken, or addresses only the incident at Senior Night purporting to establish that some of the complained-of behavior did not, in fact, occur. But even when construing the events in Moss s favor, those events reinforce the Board s reasoning, rather than revealing that reasoning as pretextual. Moreover, when analyzing pretext in this context, the question is not what misconduct actually happened, but what the defendant-employer honestly believed happened. Rioux v. City of Atlanta, Georgia, 520 F.3d 1269, 1278 (11th Cir. 2008). The facts as construed on summary judgment not to mention the facts as the Board and Williams perceived them easily satisfy the Rioux standard. For all of those reasons, Moss s three-sentence argument fails to provide significant probative evidence of pretext. Mayfield, 101 F.3d at 1376. 57 must prove (1) that she is a member of a protected class, (2) that she was qualified for and applied for a promotion, (3) that she was rejected, and (4) that other equally or less qualified employees who were not members of the protected class were promoted instead. Denney v. City of Albany, 247 F.3d 1172, 1183 (11th Cir. 2001) (citing Combs, 106 F.3d at 1539 n.11). As with other Title VII claims, once the plaintiff proves a prima facie case of discriminatory failure to promote, the defendantemployer must offer a legitimate, nondiscriminatory reason for its decision. Id. If the defendant does so, the plaintiff must prove that its reason is pretextual. Id. However, the plaintiff cannot show pretext by simply arguing or even by showing that [she] was better qualified than the [individual] who received the position [she] coveted. Brooks v. County Commissioner of Jefferson County, 446 F.3d 1160, 1163 (11th Cir. 2006) (alterations supplied); Alexander v. Fulton County, 207 F.3d 1303, 1339 (11th Cir. 2000). Instead, the plaintiff must show that the disparities between the successful applicant s and her own qualifications were of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff. Brooks, 446 F.3d at 1163 (emphasis supplied) (quoting Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004), and citing Ash v. Tyson Foods, 546 U.S. 454, 457 (2006)).302 302 In Ash v. Tyson Foods, 546 U.S. 454 (2006), the Supreme Court disapproved of the standard previously employed by the Eleventh Circuit: i.e., that [p]retext can be established 58 1. Transportation director The court will assume for the sake of the following discussion that both plaintiffs established a prima facie case for the Transportation Director position. Even so, their claims fail because they cannot establish that defendant s proffered legitimate, non-discriminatory reason for hiring a male for the position is actually a pretext for discrimination. The parties stipulated that Donald Borden accepted the Transportation Director position without any additional compensation, resulting in substantial cost savings to the Board, which was an important consideration because of the Board s poor financial condition, 303 and which constituted a legitimate, nondiscriminatory reason for hiring him. Plaintiffs sole argument regarding pretext is that [i]t would have been just as cost-effective . . . to hire one of the Plaintiffs, who are both tenured teachers, for the [Transportation Director] position and replace one of their tenured positions with a non-tenured position. 304 through comparing qualifications only when the disparity in qualifications is so apparent as virtually to jump off the page and slap you in the face. Id. at 456-57 (alteration supplied) (internal citations omitted). Even so, the Supreme Court approved of the standard that this Circuit employed elsewhere: i.e., that disparities in qualifications must be of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question. Id. at 457 (citing Cooper, 390 F.3d at 732). 303 Defendants Facts ¶¶ 30-33 (admitted by plaintiffs at doc. no. 23 (Response Brief in Opposition to Summary Judgment), at 3); see also doc. no. 27 (Reply Brief in Support of Summary Judgment), at 13 (noting the factual stipulation). 304 Doc. no. 23 (Response Brief in Opposition to Summary Judgment), at 26 (alterations supplied). 59 As previously noted, however, a plaintiff is not allowed to recast an employer s proffered nondiscriminatory reasons or substitute his business judgment for that of the employer. Chapman, 229 F.3d at 1030. That is precisely what plaintiffs argument attempts to do. Plaintiffs cannot demonstrate pretext simply by citing their own opinions about how best to manage the Board s limited financial resources. Federal courts do not sit as a super-personnel department that reexamines an entity s business decisions, Elrod v. Sears, Roebuck and Co., 939 F.3d 1466, 1470 (11th Cir. 1991), and plaintiffs cannot succeed by simply quarreling with the wisdom of such decisions. Chapman, 229 F.3d at 1030. 2. Principal at East Franklin Junior High School Plaintiffs claims regarding the position of East Franklin Junior High School principal suffer from the same deficiency as their claims regarding the position of Transportation Director: that is, even if plaintiffs could prove a prima facie case, they cannot show that the Board s proffered legitimate, nondiscriminatory reasons for hiring a male are pretexts for discrimination. The parties agree that the Board hired Scott Wiginton because he exhibited excellent skills in relating to the public, parents, students, co-workers, and administrators, and was seen as an individual who possessed the personal and professional skills [needed] to establish a positive rapport with students and parents 60 that would engender broad community support for the school considerations that were important to the Board during a time of financial stress. 305 Although such considerations are subjective, they can nevertheless be legitimate, nondiscriminatory reasons. See, e.g., Denney, 247 F.3d at 1186; Chapman, 229 F.3d at 1034. To show that the Board s proffered reasons were pretextual, plaintiffs contend that, like Wiginton, they also have the support of students, administrators, co-workers and community members.306 However, even ignoring the allegations against Moss, and assuming that plaintiffs enjoy the same support as Wiginton, the argument that plaintiffs were equally (or even better) qualified than Wiginton falls short of a showing that the disparities between plaintiffs and Wiginton were of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen Wiginton over plaintiffs. Brooks, 446 F.3d at 1163 (internal citations omitted). In an apparent effort to show that Wiginton does not have the interpersonal qualities stipulated to by the parties, plaintiffs also emphasize a single incident from 2005, during which Wiginton tossed objects at misbehaving students, hitting one 305 Defendants Facts ¶¶ 43, 45 (alteration supplied) (admitted by plaintiffs at doc. no. 23 (Response Brief in Opposition to Summary Judgment), at 3); see also doc. no. 27 (Reply Brief in Support of Summary Judgment), at 14 (noting the factual stipulation). 306 Id. 61 student with a garbage can, and knocking him off his feet.307 However, rebuttal of a proffered non-discriminatory reason for a challenged employment action requires significant probative evidence of pretext. Mayfield, 101 F.3d at 1376 (emphasis supplied). Further, plaintiffs must show that the proffered reason suffers from weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions . . . . Cooper, 390 F.3d at 725 (underlined emphasis supplied). Plaintiffs cannot meet the requirement of presenting significant evidence of pretext, and more than one reason for skepticism, by resurrecting a single, halfdecade-old incident that was the subject of a conference, but for which the hired employee was neither investigated nor reprimanded. Otherwise, once an employer proffered a legitimate, non-discriminatory reason for hiring an employee based upon a personality trait (e.g., professionalism, composure, maturity, or attitude), a plaintiff could rebut that reason by unearthing a lone counterexample in his employment history. Accordingly, the single incident relied upon by plaintiffs is not sufficient to establish that the Board s stated reason for hiring Wiginton was pretextual. 3. Career Technical Director/Evaluation Coordinator Position Plaintiffs cannot demonstrate a prima facie case of discrimination with regard to the Career Technical Director/Evaluation Coordinator position because they were 307 Doc. no. 23 (Response Brief in Opposition to Summary Judgment), at 25-26. 62 not qualified for the position. See Denney, 247 F.3d at 1183. Specifically, plaintiffs lacked the necessary teaching or supervisory experience in the requisite field. Both historically, and in the Board s 2010 posting for the position, the career technical director/evaluation coordinator was required to have five years of teaching or supervisory experience in career-technical education.308 At the time she applied for the position, Moss had never taught or supervised in career-technical education.309 Thus, Moss s prima facie case fails. Witt s experience presents a closer question. She taught career exploration classes for two or three years in Franklin County.310 Before that, she taught computer discovery classes for three years in Tishomingo County, Mississippi.311 Although the sum of those teaching experiences meets or exceeds five years, plaintiff has not shown that teaching computer discovery in an out-of-state school system would be accepted as teaching in the field of career-technical education by an Alabama school system. 308 Doc. no. 23-19 (Job Postings and Descriptions of Various Positions), at ECF 3 (Job Description for Career Technical Director/Evaluation Coordinator); Defendants Facts ¶ 48. 309 Defendant s Facts ¶ 56 (admitted only as to Moss s teaching experience); see also doc. no. 17-1 (Deposition of Amy Moss), at 126-27 ( Q: In the summer of 2010, had you ever taught any Career Technical Education classes? A: No. Q: Had you ever supervised any Career Technical Education classes? A: No. ). 310 Doc. no. 17-1 (Deposition of Resa Witt), at 22-23, 78-79; see also doc. no. 23-18 (Class Schedules), at ECF 7-12. These documents suggest that Witt taught career exploration classes for four years in Franklin County, but the difference is not dispositive. 311 Doc. no. 17-1 (Deposition of Resa Witt), at 20-21, 78-79. 63 When considering a motion for summary judgment, the court must . . . make all reasonable inferences in favor of the nonmoving party. Chapman, 229 F.3d at 1023 (emphasis supplied) (internal citations omitted). Nevertheless, an inference is not reasonable if it is only a guess or a possibility, for such an inference is not based on the evidence, but is pure conjecture and speculation. Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir. 1983). The record is devoid of evidence from which the court may infer that the computer discovery classes taught by Witt in Mississippi would count as career-technical education classes within an Alabama school system. As a result, the court will not assume or speculate that such would be the case. Thus, Witt s prima facie case also fails. 4. Assistant Principal Position at Tharptown High School Witt apparently abandoned her claim for the assistant principal position at Tharptown High School,312 and rightfully so: she cannot prove a prima facie case of gender discrimination, because the Board hired another female employee, Cynthia Forsythe, to fill the position.313 See Denney, 247 F.3d at 1183. C. Retaliation Retaliation is a separate violation of Title VII. Gupta v. Florida Board of 312 Doc. no. 17-1 (Deposition of Resa Witt), at 29-32 (declining to include the position as one she is pursing); doc. no. 16 (Brief in Support of Summary Judgment), at 9 n.1; see generally doc. no. 23 (Brief in Opposition to Summary Judgment) (failing to discuss the position). 313 Defendants Facts ¶ 40. 64 Regents, 212 F.3d 571, 586 (11th Cir. 2000). Section 704(a) of Title VII of the Civil Rights Act of 1964 protects employees who oppose or participate in activities to correct an employer s discriminatory practices. The relevant statutory language reads as follows: It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because [the employee] 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) (alteration supplied). Congress thus recognized two predicates for retaliation claims: one for opposition to discriminatory practices, and another for participation in protected activity. Under the opposition clause, an employer may not retaliate against an employee because the employee has opposed any practice made an unlawful employment practice by this subchapter. . . . And, under the participation clause, an employer may not retaliate against an employee because the employee has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. Equal Employment Opportunity Commission v. Total System Services, Inc., 221 F.3d 1171, 1174 (11th Cir. 2000) (emphasis supplied) (citations omitted). The filing of a formal charge of discrimination with the EEOC is protected under the participation clause. See, e.g., Berman v. Orkin Exterminating Co., 160 F.3d 697, 702 (11th Cir. 1998). 65 The McDonnell Douglas framework applies equally to claims of retaliation based on circumstantial evidence. See Hurlbert v. St. Mary s Health Care System, Inc., 439 F.3d 1286, 1297 (11th Cir. 2006). To establish a prima facie case of retaliation, the plaintiff must prove three elements: (1) that she engaged in statutorily protected opposition or participation; (2) that she suffered a materially adverse action at the hands of her employer; and (3) that there was a causal linkage between the protected conduct and the adverse action. See, e.g., Bass v. Board of County Commissioners, 256 F.3d 1095, 1117 (11th Cir. 2001); Johnson v. Booker T. Washington Broadcasting Service, Inc., 234 F.3d 501, 507 (11th Cir. 2000). [A] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in [the retailation] context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination. Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006) (emphasis and alterations supplied) (internal quotation marks omitted). An employee s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience. Id. The Burlington Northern decision broadened the type of employer conduct that is actionable in a retaliation claim from that which adversely affects the plaintiff s conditions of employment or employment status to that which 66 has a materially adverse effect on the plaintiff . . . . This more liberal view of what constitutes an adverse employment action accords an employee protection from a wider range of retaliatory conduct. Crawford v. Carroll, 529 F.3d 961, 973-74 (11th Cir. 2008). To demonstrate a casual linkage at the summary judgment stage, a plaintiff must only prove that the protected activity and the adverse employment action are not completely unrelated. Meeks v. Computer Associates International, 15 F.3d 1013, 1021 (11th Cir. 1994) (quoting EEOC v. Reichhold Chemical, Inc., 988 F.2d 1564, 1571-72 (11th Cir. 1993)). At a minimum, a plaintiff must generally establish that the employer was actually aware of the protected expression at the time it took the adverse employment action. Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 919 (11th Cir. 1993) (emphasis supplied). Additionally, the temporal relationship between the protected activity and the adverse employment action must be very close. Even a three-month interval between the protected expression and the adverse action is too long. Brown v. Alabama Department of Transportation, 597 F.3d 1160, 1181 (11th Cir. 2010) (quoting Clark County School District v. Breeden, 532 U.S. 268, 273 (2001)) (citations omitted). Plaintiffs brief devotes a scant three pages of analysis to their numerous 67 retaliation claims.314 Those claims fail, oftentimes for more than one reason, and typically because plaintiffs do not establish a prima facie case, even when the Board s actions are considered collectively. See Akins v. Fulton County, Geogia, 420 F.3d 1293, 1301 (11th Cir. 2005) (considering an employer s actions both individually and collectively); see also Jiles v. United Parcel Service, Inc., 360 F. App x 61, 66 (11th Cir. 2010) (per curiam) (instructing courts to consider collectively only those alleged reprisals that are truly adverse and commenced almost immediately after protected activity). 1. Moss s planning period The failure to set Moss s planning period for the second period of each day during the 2010-11 school year, or to change her schedule once classes had begun, was not causally related to her protected activity. To prove a causal connection between an employee s protected activity and the adverse employment action . . . the employee must show that: (a) the decision-makers were aware of the protected conduct; and (b) the protected activity and the adverse employment action were not wholly unrelated. Siler v. Hancock County Board of Education, 510 F. Supp. 2d 1362, 1380-81 (M.D. Ga. 2007) (quoting Gupta, 212 F.3d at 590) (emphasis supplied), aff d 272 F. App x 881 (11th Cir. 2008). Moss learned of her 2010-11 314 Doc. no. 23 (Response Brief in Opposition to Summary Judgment), at 29-31. 68 schedule on July 27, 2010, but the Board did not receive notice of her EEOC complaint until August 2, 2010, after the schedule had been generated and distributed.315 Thus, there can be no causal connection between Moss s EEOC complaint and her schedule. See Johnson v. Atlanta Independent School System, 137 F. App x 311, 315 (11th Cir. 2005); Pate v. Chilton County Board of Education, 853 F. Supp. 2d 1117, 1137 (M.D. Ala. 2012). Even if Moss could overcome that deficiency, the Board offered three legitimate, nondiscriminatory reasons for the content of Moss s 2010-11 schedule, and her inability to amend it: none of the persons who were responsible for preparing and distributing the 2010-11 schedules knew of Moss s prior agreement with former assistant principal Gary Odum; rearranging the schedules once classes had begun would have imposed an unfair hardship on the entire school; and Moss s schedule provided ample time sixteen minutes for her to travel from the elementary school to the high school, which was located on the same campus.316 Because Moss offers no argument that any of those reasons were pretextual, her claim also fails on that ground. 2. 315 Moss s classroom materials Plaintiffs Facts ¶ 43; doc. no. 17-3 (Deposition of Amy Moss), at 184-86. 316 Doc. no. 17-4 (Exhibits to Deposition of Amy Moss), Ex. 10 (Amy Moss Grievance and Accompanying Documents), at ECF 30-33. 69 Moss cannot establish a prima facie case with regard to her classroom materials, because there is no causal connection between the lack of various supplies in Moss s classroom and her EEOC complaint. The temporal relationship between the protected activity and the adverse employment action must be very close. Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2008) (quoting Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S. Ct. 1508, 149 L. Ed. 2d 509 (2001)). Even a three-month interval between the protected expression and the employment action the briefest interval we face here is too long. Id. (citing Richmond v. ONEOK, 120 F.3d 205, 209 (10th Cir.1997)). Brown, 597 F.3d at 1182 (emphasis supplied). Moss s classroom did not lack materials until sometime in 2011, and she did not lodge a complaint about their absence until August 11, 2011.317 Thus, the alleged adverse action did not take place until five to twelve months after the Board received her EEOC complaint in early August of 2010, a temporal interval far exceeding that which can legally establish a causal connection. 3. Moss s meeting with Williams and Davis on October 20, 2010 Under the pre-Burlington Northern standard, Moss s meeting with Superintendent Williams and Principal Davis during which Williams threatened to reprimand Moss for allegedly calling a student an asshole was not an adverse employment action, because Moss was not reprimanded, and did not suffer 317 Doc. no. 23-2 (Affidavit of Amy Moss) ¶ 71. 70 disciplinary sanctions, loss of pay, or any other materially adverse impact on the conditions of her employment.318 See Gupta, 212 F.3d at 588 n.15 ( A threatened letter never actually written cannot constitute an adverse employment action. ). PostBurlington Northern, the meeting presents a closer question, but nevertheless compels the same conclusion. Because Burlington Northern was decided in 2006, published Eleventh Circuit cases that present factual guidance on what constitutes a materially adverse action under that standard are scarce. Even so, the fact that an employee continues to be undeterred in his or her pursuit of a remedy . . . may shed light as to whether the actions are sufficiently material and adverse to be actionable. Burgos v. Napolitano, 330 F. App x 187, 190 (11th Cir. 2009). Nevertheless, a plaintiff s subjective response does not control the question. Johnson v. Potter, 732 F. Supp.2d 1264, 1282 (M.D. Fla. 2010). Here, Moss told Williams at the conclusion of the meeting that she intended to contact the EEOC, and then immediately did so.319 See Morales v. Georgia Department of Human Resources, 446 F. App x 179, 183-84 (11th Cir. 2011) (finding no adverse action where the plaintiff s evaluations and reprimands did not dissuade her from making another discrimination charge); Tarmas v. Secretary of Navy, 433 F. 318 Doc. no. 17-3 (Deposition of Amy Moss), at 169-171, 329-34. 319 Id. at 169-71, 328-30. 71 App x 754, 763 (11th Cir. 2011) (holding that the plaintiff has not shown that the email citing poor job performance was a materially adverse action because plaintiff s receipt of the email did not dissuade him from pursuing his claim). An employer s investigation of, and suggested discipline for, alleged misconduct typically does not amount to a materially adverse action. See Rademakers v. Scott, 350 F. App x 408, 412-13 (11th Cir. 2009) (holding that an investigation into alleged misconduct, and a subsequent recommendation of termination, would not dissuade a reasonable worker from making or supporting a charge of discrimination). Thus, under the totality of the circumstances, a reasonable employee would not have found the October 20th meeting with Williams and Davis materially adverse. Burlington Northern, 548 U.S. at 68-71. 4. Extra assignments for Moss and Witt Moss s assignments of teaching a health class in 2011 and a basic skills class in 2012 were not materially adverse actions because they would not dissuade a reasonable employee from making or supporting a charge of discrimination. Although Moss did have to undertake additional class preparation, lesson-planning, and papergrading, she did not have to teach a greater number of hours or classes.320 As Judge Ira DeMent observed, [f]acing challenges such as learning new course material and 320 Doc. no. 23-2 (Affidavit of Amy Moss) ¶ 73; doc. no. 17-3 (Deposition of Amy Moss), at 25-26. 72 preparing for new classes is an inherent aspect of the teaching profession. Bell v. Eufaula City Board of Education, 995 F. Supp. 1377, 1385-86 (M.D. Ala. 1998) (alterations supplied). Thus, Moss s new classes were, at most, minor annoyances. Burlington Northern, 548 U.S. at 68. Further, the classes were added to Moss s teaching load in 2011 and 2012, well after the Board received her EEOC complaint in August of 2010. See Brown, 597 F.3d at 1182 (three month interval too long to find causal connection); Thomas, 506 F.3d at 1364 (same). Likewise, Witt s complaints about bus duty on February 22 and 23, 2012 involve events that took place over a year and a half after defendant received her EEOC complaint, and amount to nothing more than her questioning of her superiors judgment regarding the number and location of teachers on duty. See Wilson, 376 F.3d at 1092. Moreover, the April 6th teaching schedule imposed less time covering Coach Kelly Kiser s classes on Witt and Moss (thirty-three minutes and twenty-seven minutes, respectively) than it did a non-plaintiff teacher (forty-five minutes).321 Additionally, and regardless of whether the schedule was for April 6, 2010, or April 6, 2011, it failed to satisfy the causally connected element of the prima facie case: the schedule was either produced before the Board was aware of Witt s EEOC complaint, see Johnson, 137 F. App x at 315, or it was produced too long after the 321 Doc. no. 23-20 (Extra Assignment), at ECF 4. 73 Board received notice of the EEOC charge to be causally connected. See Brown, 597 F.3d at 1182. 5. Witt s classroom conditions Witt s allegations regarding a quickly eliminated odor, the temporary lack of central heat, and the presence of black mold in the basement beneath her classroom all lack a causal connection with her protected activity, because those conditions arose in early December of 2010, four months after the Board received Witt s EEOC complaint. The Eleventh Circuit repeatedly has held that such a delay between the protected activity and the adverse employment action is too long to establish a causal connection. See, e.g., Thomas, 506 F.3d at 1364 (holding that a three-month period is not very close ); Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006) (finding that a three and one-half month period is too long). 6. Witt s need to attend a make-up faculty meeting Witt s absence from a faculty meeting on Tuesday, October 12, 2010, and her corresponding need to attend a make-up meeting the following Friday, were not materially adverse actions. Although Principal Davis s knee-jerk reaction was to consider Witt s absence to be unexcused, and to suggest that disciplinary action would be forthcoming, she quickly corrected her statements after Witt informed her of the nature of her absence: the need to drive her mother-in-law home, following her 74 discharge from the hospital. In the end, Witt was not subjected to any disciplinary action, attended the Friday meeting without further incident, and was not reprimanded for missing the Tuesday meeting, which was counted as an excused absence.322 7. Witt s student load Witt s load of 150 students during the 2010-11 school year was neither a materially adverse action, nor causally connected to her EEOC complaint. Her 201011 teaching load maintained the status quo: she had the same number of students as in previous years, including the 2009-10 school year.323 It makes little sense to find that an employer took adverse action against an employee by maintaining the status quo after the employee filed an EEOC charge. In other words, no reasonable employee would be deterred from making or supporting a charge of discrimination on the basis that her job duties remained unchanged. See Burlington Northern, 548 U.S. at 68. The fact that Witt had the same load of 150 students in prior years also suggests the absence of a causal connection between her student load and her EEOC complaint. That conclusion is bolstered by the fact that Witt received her schedule on August 3rd or 4th, the same day (or the day after) the Board received Witt s EEOC complaint.324 322 Doc. no. 17-1 (Deposition of Resa Witt), at 155-58, 166-67. 323 Id. at 171, 175, 183-84; doc. no. 17-2 (Exhibits to Deposition of Resa Witt), Ex. 15 (Emails of Aug. 8-9, 2010 between Resa Witt and Gary Williams), at ECF 27. 324 Doc. no. 17-1 (Deposition of Resa Witt), at 176-77. 75 Hence, the Board either was not aware of Witt s EEOC charge until after the schedules were distributed, or was aware of the charge, but not in sufficient time to conduct the advance planning that would have been necessary to rearrange the various teacher and student schedules in order to assign more students to Witt. See Hairston, 9 F.3d at 919; Farley, 197 F.3d at 1337; Pate, 853 F. Supp. 2d at 1137. 8. Discipline for Witt s students Witt cannot establish a prima facie case with regard to the allegedly inadequate disciplinary sanctions imposed on her students, and the observation of her classroom by a superior in order to address further misbehavior. She also has not shown that the reasons for observing her classroom were pretextual. Because those events took place in November of 2010, and February and March of 2011, the incidents are not very close in time to Witt s EEOC complaint, and fall outside the period necessary to show a causal connection. See Brown, 597 F.3d at 1182; Thomas, 506 F.3d at 1364. Assistant Principal Riddle also offered legitimate, nondiscriminatory reasons for observing Witt s classroom: i.e., to monitor the behavior of [students whom Witt accused of being disruptive] and to stop these students from hindering other students and make it easier on [Witt] to teach the class. 325 Witt did not attempt to rebut 325 Doc. no. 17-2 (Exhibits to Deposition of Resa Witt), Ex. 22 (Email of Feb. 18, 2011 from Darit Riddle to Resa Witt), at ECF 42 (alterations and emphasis supplied); see also doc. no. 17-1 (Deposition of Resa Witt), at 216-17. 76 Riddle s reasons in her brief, and admitted at her deposition that the in-class observation achieved the goal of quelling student misbehavior, at least in the short term.326 V. CONCLUSION For all the foregoing reasons, defendant s motion to strike is due to be granted in part and denied in part. Defendant s motion for summary judgment is due to be granted, and all claims dismissed with prejudice. A separate order will be entered contemporaneously with this opinion. DONE this 28th day of February, 2013. ___________________________ United States District Judge 326 See doc. no. 23 (Response Brief in Opposition to Summary Judgment), at 29-31; doc. no. 17-1 (Deposition of Resa Witt), at 221-22. 77

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