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Jenkins v. Tuscaloosa City Board of Education

United States District Court, N.D. Alabama, Western Division

December 9, 2014


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For Janice R Jenkins, Plaintiff: John D Saxon, John D Saxon, Jr, JOHN D SAXON PC, Birmingham, AL.

For Tuscaloosa City Board of Education, Defendant: E Dianne Gamble, LEAD ATTORNEY, BOARDMAN CARR & HUTCHESON PC, Chelsea, AL; William David Ryan, PHELPS JENKINS GIBSON & FOWLER, LLP, Tuscaloosa, AL.

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This case is before the court on Defendant's Motion for Summary Judgment (Doc. 28), filed August 12, 2014. The Motion (Doc. 28) has been fully briefed. (Docs. 30, 32, 34, 37, 40). Plaintiff Janice Jenkins asserts that Defendant Tuscaloosa City Board of Education violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the Civil Rights Act of 1866, 42 U.S.C. § 1981. (Doc. 1 at 1). In particular, the Complaint asserts race discrimination claims (Counts One and Three), retaliation claims (Counts Two and Four), and a state law conversion claim (Count Five). (Doc. 1 at 10-17). The claims before the court are only those set forth by Plaintiff in her Complaint.[1]

Initially, in her original Complaint, Plaintiff asserted that her transfer to a different school was unlawful discrimination in violation of Title VII and § 1983. However, as Plaintiff has discovered after making that assertion, the U.S. Department of Education's Office of Civil Rights (" OCR" ) investigated a parent complaint which targeted Plaintiff. As part of the resolution of that Complaint, OCR demanded Plaintiff's transfer or termination based on the conduct that OCR concluded to be discriminatory. Faced with this discovery, Plaintiff ran in a new direction. That is, she shifted her theory, suggesting for the first time in her Response to Defendant's Motion for Summary Judgment that Defendant discriminated against her by subjecting her actions to a heightened level of scrutiny. The court addresses this shift below and, after a careful review of the record and the arguments made in this case, the court concludes that the undisputed Rule 56 record evidence does not permit Plaintiff to establish any of her federal claims. Therefore, Defendant's Motion (Doc. 28) is due to be granted on each of Plaintiff's federal claims. Accordingly, because all of her federal claims are due to be dismissed, and it was those claims that provided a basis for federal question jurisdiction in this action, the court declines to exercise supplemental jurisdiction over Plaintiff's state law conversion claim.

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I. Procedural History

On April 30, 2012, Plaintiff filed a Charge of Discrimination against Defendant with the United States Equal Employment Opportunity Commission (" EEOC" ). (Ex. 1-A, EEOC Charge, at 2 (Charge No. 846-2012-43001)). Plaintiff's Charge asserted claims for discrimination based on race and retaliation. ( Id.) On February 21, 2013, Plaintiff received a Notice of Right to Sue from the EEOC. (Doc. 1, Ex. B, EEOC Notice of Right to Sue, at 4).

On May 22, 2013, Plaintiff filed this action asserting violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (" Title VII" ), and the Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981 (" § 1981" ). (Doc. 1 at 1). The Complaint asserts race discrimination ( i.e., disparate treatment) claims (Counts One and Three), retaliation claims (Counts Two and Four), and a state law conversion claim (Count Five). (Doc. 1 at 10-17).

II. Standard of Review

Under Rule 56(c), summary judgment is proper " if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party asking for summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the moving party has met its burden, Rule 56(e) requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial. See id. at 324.

The substantive law will identify which facts are material and which are irrelevant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the nonmovant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine " if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. See id. 249. The Eleventh Circuit has " consistently held that conclusory allegations without specific supporting facts have no probative value." Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir. 2000).

III. Facts[2]

A. Background

During the 2011-2012 school year, Plaintiff Janice Jenkins was a paraprofessional

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( i.e., instructional aide) with the STARS Academy. (Ex. 1, Jenkins Dep. 23:14-15).[3] The STARS Academy was an alternative program for children with behavioral problems run by Defendant. ( Id. at 37:18-22, 24:6-18; Ex. 3, Plott Dep. 24:4-9). Initially, the program was housed at the Tuscaloosa Magnet School, but for the 2011-2012 school year, the program was moved to Skyland Elementary School, where Dr. Cheryl Fondren was the principal. (Ex. 1, Jenkins Dep. 24:21-23; Ex. 6, Fondren Aff. ¶ ¶ 4-5).

Both Plaintiff and Rita Pate, another paraprofessional, were assigned to work with teacher Carol Plott's class for third through fifth grade students. (Ex. 1, Jenkins Dep. 39:6-10; Ex. 3, Plott Dep. 22:16-20). As paraprofessionals, Plaintiff and Pate's duties included helping the students with homework and class work, as well as with bathroom and lunchroom breaks. (Ex. 1, Jenkins Dep. 34:10-23; Ex. 2, Pate Dep. 18:15-19:15).

At all times relevant to the litigation, Dr. Paul McKendrick was the Superintendent of Defendant Tuscaloosa City Board of Education. (Ex. 10, McKendrick Dep. 10:8-11:9). Dr. Michael J. Daria was employed with the Defendant as the Assistant Superintendent of General Administration. (Ex. 5, Daria Aff. ¶ 2). In this position, Daria was responsible for general operations, including transportation, health services, child nutrition program, social services, student attendance, and student discipline. ( Id. at ¶ 3). Several incidents form the heart of this controversy, and each is outlined separately below.

B. Work Assignments

During the 2011-2012 school year, Fondren informed Daria of numerous complaints about classroom conflicts between Plaintiff and her assigned teacher, Plott. (Ex. 6, Daria Aff. ¶ 9; Ex. 6, Fondren Aff. ¶ 6). Plaintiff alleges that Plott treated her less favorably than her white co-worker Pate. (Ex. 1, Jenkins Dep. 38:19-39:2; Ex. 7, Fondren Dep. 32:14-18). Plott " usually gave Rita Pate . . . work to do instead of Plaintiff." (Doc. 1 at ¶ 9). Furthermore, Plott would usually send Plaintiff out for copies while Pate stayed in the classroom to help Plott. (Ex. 1, Jenkins Dep. 42:10-14, 43:5-8). Plaintiff claims the disparity in work assignments was related to an earlier discussion between Plott and Plaintiff, where Plaintiff admonished Plott for Plott's discriminatory comments about a black beauty contestant. ( Id. at 42:2-10). At all times, the tasks given to Plaintiff were within her job duties as a paraprofessional. ( See id. at 34:10-23; Ex. 2, Pate Dep. 18:15-19:15).

As a result of the tension between Plaintiff and Plott, from the first day of school, August 5, 2011, through late September 2011, Fondren had several meetings with Plaintiff, Pate, and Plott regarding " mutual respect," " use of cell phones," the " roles of teachers and para[professionals]," and " the importance of working as a team." (Ex. 7, Fondren Dep. 33:19-34:1). She also addressed with them " work assignments with district leadership" ( id. at 35:14-17) and " that everyone should have . . . equal workloads" ( id. at 36:8-9).

Plaintiff also accuses Plott of raising her voice at Plaintiff on a separate occasion, (Ex. 2, Pate Dep. 30:7-17), and that Plott " screamed" at her for no reason. (Ex. 1, Jenkins Dep. 55:16-56:1). Pate reported details regarding the confrontation:

Plott was upset and trying to figure out why Ms. Jenkins didn't like her and why she . . . refused to be part of the team

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and work with us as a team. And when she would ask Ms. Jenkins to do something, Ms. Jenkins wouldn't do it or chose not to do it or would leave the room.

(Ex. 2, Pate Dep. 30:22-31:7). At this point, Plott walked over to Plaintiff and said, " What . . . can I do to make you . . . like me and work together?" ( Id. at 31:10-13). Plaintiff only repeated, " Something is going to go down today." ( Id. at 31:13-20).

C. The October 3, 2011 Incident Involving Restraint of a Student

On October 3, 2011, T.R., a student at Skyland Elementary School, became violent and attempted to leave campus and run into the street. (Ex. 6, Fondren Aff. ¶ 15). His teacher attempted to restrain him, along with the assistance of Principal Fondren and other educators. ( Id. at ¶ 15). At some point, after the Skyland staff got T.R. inside the school, Plaintiff inserted herself into the fray. Plaintiff approached the scuffle in the hallway, stating that she knew what to do and was trained to handle these situations. (Ex. 7, Fondren Dep. 56:1-6). Accounts from the staff regarding what happened next vary. ( See Ex. 6-H, Unusual Occurrence Forms, Oct. 3, 2011).

Plaintiff claims that as Plaintiff and Pate were returning to the building after loading students onto the bus to go home, they heard a child screaming. ( Id. at 67:4-8). Plaintiff and Pate encountered Fondren and three other Skyland employees restraining T.R. in a hallway near their classroom. ( Id. at 67:8-12). Plaintiff recounts:

[T]hey had a little boy down on the floor. One of them had him around the neck, Ms. Burton had her knee in his back, and Dr. Fondren was holding his leg, and Ms. Irvin was holding on to him. So he was just screaming, . . . . " [G]et these bitches off of me. . . . I can't breathe."

( Id. at 67:12-19). After seeing the child was T.R., Plaintiff claims to have kneeled down on the floor near to him, and tried to calm him down, saying " they'll get up off of you, . . . but you got to calm down first." ( Id. at 67:20-68:1-3). T.R. allegedly responded, " no, Ms. Jenkins, . . . they still got -- this bitch got her knee in my back." ( Id. at 68:3-5). Plaintiff says she observed that T.R. was " hyperventilating like he couldn't breathe," ( id. at 68:6-8), so she told Fondren:

[W]hen a child tells you they can't breathe . . . you're supposed to get up off of him. . . . [T]his child don't weigh 85 pounds, and . . . there's four of y'all on him. You're supposed to let him up when he says he can't breathe. So I talked to him to like calm him down. I was -- they had got him calm."

( Id. at 68:8-14). Plaintiff alleges that as she was getting T.R. up to take him in the office, inexplicably the other staff members " tackled him again." ( Id.)

Accounts provided by others about this incident vary significantly. Several employees report that Plaintiff took T.R. from Early and flipped him onto his stomach and placed her knee in the student's back, thereby obstructing his breathing. ( See Ex. 3, Plott Dep. 44:18-45:18; Ex. 6, Fondren Aff. ¶ 15; Ex. 6-H, Burden Unusual Occurrence Form, Oct. 3, 2011, at 35; Ex. 6-H, Early Unusual Occurrence Form, Oct. 3, 2011, at 36; Ex. 7, Fondren Dep. 56:8-16). Some observers suggest Barbara Rainey, Plaintiff's sister and the child nutrition program manager for Skyland, ultimately caused Plaintiff to release T.R. ( See Ex. 3, Plott Dep. 45:19-46:5 (claiming Rainey said " Janice, you better get off that kid. Janice, let him go." ); Ex. 6-H, Foster Unusual Occurrence Form, Oct. 3, 2011, at 32 (claiming Rainey said " Janice

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leave him alone," and " get your hands off that boy." ); Ex. 7, Fondren Dep. 56:20-57:5 (claiming Rainey said " Janice, get off that boy." )).

In her October 3, 2011 Unusual Occurrence Form, Pate suggests that along with Plaintiff, " Ms. Early and Ms. Burden were holding [T.R.] down too," and " Ms. Burden had her knee down into his back and stayed there until Ms. Jenkins started trying to get him to stand up as Ms. Fondren suggested." (Ex. 6-H, Pate Unusual Occurrence Form, Oct. 3, 2011, at 39). Plaintiff also argues the written statement she gave to Fondren regarding the incident was never turned in to Defendant so that the incident could be investigated. (Ex. 1, Jenkins Dep. 70:1-71:18).

Fondren is on record as saying she believed Plaintiff's restraint of T.R. seemed " excessive, given the circumstances." (Ex. 6, Fondren Aff. ¶ 15 (" [Plaintiff's] restraint method was excessive in the opinion of the educators present, including myself. [Plaintiff's] excessive restraint of the student put the safety of the student as [sic] risk." )). Accordingly, on October 4, 2011, Fondren advised Daria and Vicki Brown, Defendant's Director of the Office of Student Services, that she wanted to implement certain procedures and reinforce Defendant's current restraint policy. ( Id. at ¶ ¶ 16-17).[4]

On the same day, Fondren implemented a new and updated Skyland policy by drafting a memorandum on student altercations and physical restraint (Ex. 6-J, Fondren Memo, Oct. 4, 2011, at 47) and a memorandum on behavioral issues ( id. at 48). Fondren held a faculty and staff meeting to discuss the same. (Ex. 6, Fondren Aff. ¶ 17). Fondren claims Plaintiff attended ( id.); Plaintiff claims she does not recall attending. (Ex. 1, Jenkins Dep. 105:15-23). Ultimately, neither Plaintiff nor any of the other employees involved in the restraint of T.R. were disciplined.

D. The October 20, 2011 Incident

On October 20, 2011, an incident occurred which involved Odessa Dumas, a Skyland teacher, and Fondren. Dumas became upset after Fondren informed her that she would not have a student-teacher in her classroom. (Ex. 6, Fondren Aff. ¶ 18).

Plaintiff claims that she found Dumas crying and took her to an empty room. (Ex. 1, Jenkins Dep. 63:1-8). Shortly thereafter, Fondren came to speak with Dumas, but Dumas left the room to get away from Fondren. ( Id. at 63:5-12). At this point, the facts surrounding this incident are disputed.

Plaintiff alleges that she did not see anything else and assumes Dumas went back to her room. ( Id. at 63:12-15). Fondren claims Dumas intentionally pushed her as Dumas left the room. (Ex. 7, Fondren Dep. 40:18-42:11). Fondren testified that someone from STARS may have seen the incident, but that she couldn't remember if anyone was in close proximity. ( Id. at 44:4-17). Plaintiff alleges Fondren twice requested Plaintiff to fabricate a statement that ...

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