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White v. Alabama Institute for Deaf and Blind

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

February 28, 2018

NEKITA WHITE, Plaintiff,
v.
ALABAMA INSTITUTE FOR THE DEAF AND BLIND et al., Defendants.

          MEMORANDUM OPINION

          VIRGINIA EMERSON HOPKINS United States District Judge

         I. Introduction and Procedural History

         This employment discrimination action was filed on February 1, 2016, by Plaintiff Nekita White against Defendants Alabama Institute for Deaf and Blind (“AIDB”), John Mascia, and Christy Atkinson. (Doc. 1). Count I alleges race-based discrimination under 42 U.S.C. § 1983. (Id. at 7-9). Count II alleges retaliation, under §1983 and Title VII of the Civil Rights Act of 1964, for filing EEOC charges. (Id. at 10-11). Count III alleges harassment and a hostile work environment. (Id. at 11-12).

         Before the Court are two motions for summary judgment. The first is from Defendants Alabama Institute for Deaf and Blind and John Mascia (the “AIDB/Mascia Motion”). (Doc. 34). The second is from Defendant Christy Atkinson (the “Atkinson Motion”). (Doc. 37). The motions are ripe for review.

         Additionally, AIDB and Mascia filed a Motion To Strike White's response to their motion for summary judgment. (Doc. 45). Atkinson filed a Motion To Strike White's response to her motion for summary judgment. (Doc. 47). Finally, Mascia “asks the Court to impose sanctions against [White] and/or her attorney.” (Doc. 35 at 11).

         For the reasons herein stated, these motions are due to be GRANTED in part and DENIED in part.

         II. Standards

         A. Motions To Strike

         It has long been the law in this circuit that, when deciding a motion for summary judgment, a district court may not consider evidence which could not be reduced to an admissible form at trial. See Macuba v. Deboer, 193 F.3d 1316, 1323(11th Cir. 1999). But, until 2010, Rule 56 lacked a formal procedure to challenge such inadmissible evidence. In 2010, the advisory committee added Rule 56(c)(2), which provides:

A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.

Fed. R. Civ. P. 56(c)(2).

         B. Motions For Summary Judgment

         Under Federal Rule of Civil Procedure 56, summary judgment is proper if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (“[S]ummary judgment is proper if the pleadings, Depo.s, 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 a judgment as a matter of law.”) (internal quotation marks and citation omitted). The party requesting 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 that 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 non-moving party to go beyond the pleadings in answering the movant. Id. at 324. By its own affidavits - or by the depositions, answers to interrogatories, and admissions on file - it must designate specific facts showing that there is a genuine issue for trial. Id.

         The underlying substantive law identifies which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. Chapman, 229 F.3d at 1023. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248. A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. If the evidence presented by the non-movant to rebut the moving party's evidence is merely colorable, or is not significantly probative, summary judgment may still be granted. Id. at 249.

         How the movant may satisfy its initial evidentiary burden depends on whether that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant bears the burden of proof on the given issue or issues at trial, then it can only meet its burden on summary judgment by presenting affirmative evidence showing the absence of a genuine issue of material fact - that is, facts that would entitle it to a directed verdict if not controverted at trial. Id. (citation omitted). Once the moving party makes such an affirmative showing, the burden shifts to the non-moving party to produce “significant, probative evidence demonstrating the existence of a triable issue of fact.” Id. (citation omitted) (emphasis added).

         For issues on which the movant does not bear the burden of proof at trial, it can satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16.

         First, the movant may simply show that there is an absence of evidence to support the non-movant's case on the particular issue at hand. Id. at 1116. In such an instance, the non-movant must rebut by either (1) showing that the record in fact contains supporting evidence sufficient to withstand a directed verdict motion, or (2) proffering evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-movant may no longer rest on mere allegations; instead, it must set forth evidence of specific facts. Lewis v. Casey, 518 U.S. 343, 358 (1996). The second method a movant in this position may use to discharge its burden is to provide affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial. Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering evidence sufficient to withstand a directed verdict at trial on the material fact sought to be negated. Id.

         II. Factual Background[1]

         A. The Motions To Strike Are Due To Be Denied.

         As an initial matter, the Court takes up the Defendants' Motions To Strike since they will affect the factual background and the ultimate determination on summary judgment. See English v. CSA Equipment Co., LLC, 2006 WL 2456030, *2 (S.D. Ala. Aug. 22, 2006) (Steele, J.) (“Because any summary judgment evaluation necessarily hinges on the type and nature of facts in the record and on the arguments that may be considered, and because the Motion to Strike calls into question which facts and arguments are properly before the Court, resolution of that Motion is the appropriate analytical starting point.”).

         AIDB/Mascia move to strike all references to the time period preceding September 27, 2013, because the Complaint specifies that it refers to the events after that date. (Doc. 45 at 1-2).[2] At the very end of the motion, without much explanation, AIDB/Mascia claim that these references should be stricken because they are “barred by the statute of limitations; outside the parameters of the complaint; [have] no continuity given the personnel changes of AIDB; and [have] no connection with the employment position that occurred after September 27, 2013.” (Id. at 2). The Court notes that the objected-to references occurred immediately prior to the date of the complaint. This temporal proximity, combined with AIDB/Mascia's failure to cite a single legal authority showing why the objected to references should be stricken, convinces the Court it should not strike those references. Accordingly, this motion is DENIED.

         Additionally, Atkinson takes issue with the manner in which White responded to her Motion For Summary Judgment. (Doc. 47 at 2). Atkinson states that White's response “does not state additional disputed facts in a separately designated section as mandated in the Court's summary judgment requirements.” (Id.). Atkinson asks the Court “to strike: (1) any statements of alleged facts interspersed in [White's] response to [Atkinson's] fact statements; and (2) all assertions of facts by [White] that are not supported by specific references to the evidence.” (Id.).

         The Court's Uniform Initial Order speaks to Atkinson's Motion To Strike. (See Doc. 3). The Court declines to strike White's statements in her response to Atkinson. The Court will instead treat them as the evidentiary record being used to dispute Atkinson's facts. While White's response is not conventional, [3] the Court notes that Atkinson was able to reply effectively. (Doc. 46). Further, “this court has managed to parse those responses.” See Rhodes v. Arc of Madison County, Inc., 920 F.Supp.2d 1202, 1225 (N.D. Ala. 2013) (Smith, J.). However, the Court also notes that this case is at the summary judgment stage. That means that assertions of fact need to be buttressed by citations to the record, as the Court's previous discussion of the standard indicates. Getting past summary judgment is very different from getting past the pleading stage. Accordingly, the Court does not give weight to naked allegations of fact that do not have a citation to the evidentiary record. Obviously, this goes for all parties. In conclusion, Atkinson's Motion is DENIED.

         B. Statement of Facts Relating to Atkinson

         Christy Atkinson served as principal of the Helen Keller School from July 2011 until August 2015. Nekita White began working at AIDB in July 2004 as a Dorm Aide on third shift. White identified, in her deposition, seven jobs as AIDB that she applied for but was not hired due to alleged discrimination or retaliation:

1. Dorm/Teacher Aide, Helen Keller School-January 29, 2012
2. Dorm/Teacher Aide, Helen Keller School-February 2, 2012
3. Job Coach, Helen Keller School-June 13, 2014
4. Job Coach, Helen Keller School-June 22, 2015
5. Job Coach, Helen Keller School-August 5, 2015
6. AIDB Bus Guide-May 20, 2016
7. Job Coach, Helen Keller School-August 23, 2016

         Atkinson was not employed at AIDB in 2016 and had nothing to do with the last two job openings above. The job and qualification requirements for Dorm Aides included monitoring students every thirty minutes, ironing, washing/folding clothes, mopping, making beds, waking students, assisting dressing, administering medication, and feeding breakfast. (White Ex. 1); (White Depo., 17:6-10).

         Dorm/Teacher Aides differ from Dorm Aides and were responsible for assisting a teacher in instructing students in the classroom. Dorm/Teacher Aide positions required one year experience working with students in an educational environment.[4]

         The AIDB Human Resources Department, not Atkinson, took applications for open jobs and selected the applicants to be interviewed. Atkinson was not provided application materials for White in January or February 2012. In January and February 2012, available Dorm/Teacher Aide positions were posted for AIDB in its entirety, not just for positions supervised by Atkinson. Applications were submitted to the Human Resources Department and interviews were scheduled and conducted by the Human Resources Department.

         Representatives from each AIDB campus attended the interviews for the available positions in January and February 2012. Atkinson attended to interview candidates for second and third shift jobs at the Helen Keller School. At that time, the Helen Keller School did not have a first shift Dorm/Teacher Aide position available. White was not one of the candidates who interviewed for the available jobs in January and February 2012, and Atkinson did not know that White had applied for any job at the Helen Keller School. (Atkinson Dec. at 3). However, White did apply for the Dorm/Teacher Aide job postings in January and February 2012. (White Depo. at 211-212). This was after she had submitted her physician's note to the Human Resources office regarding her diagnosis of severe circadian rhythm disorder and requested an accommodation that she change to day shift or day evening shift. (White Depo., 209); (White Ex. 3). White sent a letter to John C. Connell, Director of Residential Staff, regarding a letter from her physician about her diagnosis and requested an accommodation. (White Ex. 4). Connell submitted a letter to White indicating that he received her October 25, 2011, letter informing him of her medical disorder and request for accommodation and that, at that time, there was not a position available to accommodate her. (White Ex. 5). In January 2012, White obtained a physician's note from Dr. Moersch saying that she is pregnant, and the pregnancy is a high risk threatening miscarriage. (White Ex. 8).

         The selection for each available job at the Helen Keller School while Atkinson was Principal was made by a committee whose members rated each applicant independently. The average of the committee members' scores for each candidate determined the candidate who scored highest, who Atkinson would then recommend for the job. Atkinson's scores were weighted equally with those of the other committee members.[5] Atkinson did not attempt to influence the scores or decisions of other committee members or affect the recommendations in any way other than making her own individual evaluation of each candidate.[6]

         Atkinson and Tenicia Barclay, a black female, interviewed the qualified candidates for a Job Coach position in June 2014. The committee recommended Katie Trotter, a white female, [7] for the Job Coach position in June 2014. White contends that Atkinson was on the selection committee to discuss her and negatively influence the committee as it relates to her and Atkinson's animosity towards her because of the EEOC complaints White filed. Trotter met all the requirements for the Job Coach position.White believes that she did as well. (White Depo. at 118: 6-9). The responsibility of a Job Coach was to help train students for jobs with employers outside of AIDB. Trotter had prior, similar experience preparing students for living and working outside AIDB. She also had completed college courses toward a degree in education. Atkinson claims that she ranked Trotter higher than White because of prior relevant experience, education, and more favorable impressions during the interview. In response, White falls back on her general allegations of Atkinson's animosity. She then relies on a conversation she had with Trotter that indicated that she was interviewed over the phone and accepted after being called while in the shower. (Doc. 41 at 8).[8] However, this is not enough to create a triable issue because White does not to cite to any record evidence that disputes that Atkinson chose Trotter based on legitimate reasons.

         White alleges that Nephateria Jones, [9] a black female, was hired for a Job Coach position that White also applied for. White described Jones, who had a master's degree, as “overqualified”, but also claimed Jones lacked certifications for CPR and sign language and did not have a commercial driver's license. AIDB job candidates are allowed to obtain those required certifications within a specified time after being hired and are not required to possess them upon applying. Jones had a master's degree in business, had worked at a community college helping place students in jobs in the community, and had worked for a group home specializing in transitioning residents to the community. Jones was fired after approximately one year at AIDB.[10] Atkinson found Jones to be better qualified than White.[11]

         White does not remember if she interviewed for a Job Coach position in August 2015. She does not know who was selected for the position, but she believes a black female named Shametra Miller was hired. Miller had previously been a teacher in the Anniston City School system and was overqualified, in White's opinion. White interviewed for the Job Coach position and did not receive anything acknowledging her application nor any correspondence indicating that she had not been selected for the position. (White Depo., 139:4-12). Miller was selected but left after one year of employment as Job Coach. (White Depo., 137:9-12).[12]

         White requested as an accommodation for a sleep disorder in October 2011 to move to first shift or a split day/evening shift. She reported to her doctor she was sleeping from four hours (9AM - 1PM) to six hours (8AM - 2PM) per day at that time. (Atkinson Ex. 11, Physician's Note and Work Status Report). At the time White requested a shift change based on her doctor's recommendation, there was no first-shift position available. (Atkinson Depo., 35:1-5, 37-6-19). White was offered a split day/evening shift job in December 2011, which she declined.[13] AIDB placed White in a first-shift position in June 2012, which was the first first-shift position to become available after White provided the recommendation from her doctor. (Atkinson Depo., 42: 14-21).[14]

         White also cites to evidence to support her allegations of a hostile work environment. She was removed from the substitute list. (White Ex. 25, 26, 27). She was not allowed to have a baby shower before 3PM, and she introduced evidence that others had been allowed to do so. (White Ex. 12, 13, 14). She was removed from the active bus driver list. (White Ex. 29, 30, 31). She was required to draft and submit an additional statement related to a medical error even though she complied with AIDB medical error protocol. (White Ex. 15-24).

         C. Statement of Facts Related to AIDB/Mascia[15]

         a. White's Allegations of Discrimination

         Students in the Awakenings Program, ages 3 to 21, are severely impaired. Night shift Dorm Aides check on the kids every 30 minutes while they are asleep; iron and wash their clothes; clean the dorm; and administer medication. From 2004 to 2011, White worked at AIDB as a 3rd shift (night shift) Dorm Aide. (Challender Aff. at 13-14). In October 2011, White's physician, Dr. Rahim Fazal, diagnosed her with severe circadian rhythm disorder and requested an accommodation that she change to day shift or day evening split shift. (White Depo., 209:3-8); (White Ex. 3). On October 24, 2011, White advised her supervisor that she had a sleep disorder- Circadian Rhythm sleep disorder. (Challender Aff. at 13-14). She forwarded a letter to John C. Connell, Director of Residential Staff, informing him of her physician's diagnosis of severe circadian rhythm disorder and request for accommodation. (White Ex. 4). Connell drafted a letter to White acknowledging receipt of the October 25, 2011, letter and the severe circadian rhythm disorder and request for accommodation and that at that time, there was not a position available to accommodate her. (White Ex. 5). A meeting was scheduled for November 4, 2011, to discuss White's medical issue as well as accommodation, but the meeting did not occur. (White Ex. 6). The meeting was rescheduled for November 8, 2011, with Connell memorializing the meeting in a memorandum dated the same day. (White Ex. 7). On January 5, 2012, White was informed she was pregnant/ high risk pregnancy threatening miscarriage. (White Ex. 8). In January 2012, White was offered a split shift position, a position she declined because she had a high risk pregnancy and could not perform the duties. (Doc. 36-4 at 12); (White Depo., 30:8-31:4); (Atkinson Depo., 37:22-38:5). The position was offered to Michelle Lizik. White went on FMLA leave from January 31, 2012, to March 10, 2012. In July 2012, White was offered a 1st shift position as a Dorm Teacher Aide. She accepted the position. (White Depo., 30:8 to 31:4). The Dorm Teacher Aide position was offered to her without her applying for the position.

         Dorm Teacher Aides serve the same students as Dorm Aides and have similar duties. Dorm Teacher Aides work different hours than Dorm Aides - 8 a.m. to 4:30 p.m. Dorm Teacher Aides assist the teacher: toileting, eating, attending gym, therapy, field trips, and changing diapers. They help clean and maintain their work environment, as do Dorm Aides. The lead teacher for the Awakenings Program was Jennifer Oldenburg. White was assigned to her. White believes she was discriminated against when she applied for, but was not selected as, a Dorm Teacher Aide in 2012, Job Coach positions in 2014-2016; and as a bus guide in 2016.

         White believes she was better qualified to be a Dorm Teacher Aide than Lizik, who was selected for a position posted January 29, 2012. White had filed an EEOC complaint alleging discrimination in 2011. White was pregnant from October 2011 to July 16, 2012. (White Depo., 70:1-22). The Dorm Teacher Aide position was posted January 2012. (Id.).

         White believes she was not selected in retaliation for filing an EEOC complaint in 2011.[16] Between 2008 and 2012 four Caucasians were selected as Dorm Teacher Aides. The basis for White's contention of discrimination is that they were white. She also alleges retaliation. (White Depo., 71:20-23). White had no conversation with the Helen Keller School principal asking why other applicants were selected. Dorm Aides were paid less than Dorm Teacher Aides.

         Regarding the position posted February 2, 2012, White does not know who applied or who was selected. White acknowledged that if she had been selected, it was a job she would have started immediately.[17] She never asked her principal or talked with her principal about who was selected or why. (White Depo., 94:10-19).

         Katie Trotter was selected for the Job Coach position posted on June 3, 2014. (White Depo., 112:18-20). White does not know Trotter's qualifications. (White Depo., 114:9 to 115:1). Trotter was attending school. (Id.). White avers that she was not selected based on retaliation. (White Depo., 112:13 to 115:19). She avers that she had been employed by AIDB for several years prior to Katie Trotter's hiring and she had more seniority and experience and qualifications than Katie Trotter. (White Depo., 114:15-19). White had applied for multiple positions at AIDB and had not been selected, while Katie Trotter had been moved, transferred, and promoted two or three times. (Id. at 119:19-22).

         Nephateria Jones was employed for the Job Coach position posted June 22, 2015. White alleges that Jones did not possess the necessary qualification, but as the Court noted above, she was not required to possess those qualifications at the time of hiring. White also believes that Jones was overqualified. (White Depo., 122:17 to 123:1). White thought she was getting a Master's degree from Jacksonville State University. (Id.).

         White asked to be transferred to the Dorm Teacher Aide position even though the pay was lower than the pay for Dorm Aide because of the different hours. (White Depo., 126:10-14). She wanted the change because of her pregnancy and circadian rhythm disorder. (Id.).

         White applied for the AIDB Job Coach position posted August 6, 2015. (White Depo., 131:5 to 140:4). For that position, Shametra Miller, an African-American female, was selected. (Id. at 136:5-12). White believes Miller was overqualified because she had been a teacher in the Anniston school system. (Id. at 137:16-20). White believes she was not selected in retaliation. (Id. at 138:13-20).

         White applied for the AIDB Bus Guide position posted May 20, 2016. For this position, Michelle Lizik was hired. (White Depo., 147:14-22). Lizik was already serving as a bus guide for route to Montgomery. (Id. at 151:1-6).[18] However, she believes she was discriminated against because she was not hired. (Id. at 149:14 to 150:2).

         The Job Coach position posted August 23, 2016 was not filled. White believed it was not filled in order to retaliate against her.

         White never filed a complaint concerning the use of staff to drive students to the horse barn. She never asked to go. White believed she was discriminated against when she was not allowed to attend a student's[19] graduation. She believes she was discriminated against when she was asked not to have a baby shower during academic times - 1 p.m. to 3 p.m. - but could have a baby shower after 3 p.m. (White Depo., 219:22 to 220:6). There is evidence that others had baby showers on campus during the earlier time. (White Ex.13, 14).

         White believes it was discriminatory to be asked to write a statement about administering the wrong medication, when others did not have to submit an additional report. (White Ex. 19, 20). Taken in the light most favorable to White, submitting an additional report was not required under protocol. (White Ex. 22 at 56).[20] To write up the statement took White five minutes, she did it while at work, she was paid for that time, and she was not disciplined. (White Depo., 232:2-4, 242:9-13).

         White was removed from the substitute list on October 11, 2012, because of her primary position as a Dorm Teacher Aide. (White Ex. 27). However, she never requested to substitute at the Helen Keller cafeteria on the weekend. (White Depo., 229:17-19). At most, she sent Atkinson an email asking why she was not able to substitute because she believed she could still work on the weekends. (Id. at 229:14 to 230:3). In her deposition, White stated that “[r]ight now I am not being discriminated against.” (Id. at 181:9-12). The Defendants deny generally the allegations of discrimination.[21]

         c. Response by John Mascia to Allegations of Discrimination

         Mascia (“Mascia”) serves as President of AIDB. White sues Mascia in his official capacity as President of AIDB and in his individual capacity. Mascia has had no involvement or interaction with White in either his official capacity as President or in his individual capacity. (Mascia Aff., 1-2).[22] Mascia requested that he be dismissed from the lawsuit in his individual capacity since there were no facts to support Plaintiff's contentions against him in his individual capacity. (Id. at 5). Mascia has not discriminated against White regarding any of the positions to which she applied and was not selected. Mascia does receive information about the person deemed best qualified for a particular position. Mascia does not receive the names or other information about persons who applied for a position but were not selected. He reviews the information submitted about the person recommended to be employed, but he is not provided information about the persons who applied. Mascia had no knowledge that White applied for any of the positions about which she claims discrimination and/or retaliation. Mascia recommended persons to be employed by the AIDB Board based entirely on the credentials of the person being recommended, and without any information about White or anyone else who applied for and was not selected for a position of employment. Mascia never considered anything about White - her gender, her race, or her EEOC complaints - when he made recommendations for employment to the Board.[23]

         d. White's Allegations of Specific Job Positions

         1. Job Coach Position Posted June 13, 2014

         White applied for this position and was interviewed. (Doc. 36-3 at 10). The parties dispute why she was not hired. White avers that she had been employed by AIDB for several years prior to Katie Trotter's hiring and White had more seniority and experience and qualifications than Katie Trotter. (White Depo. at 114:15-19). White had applied for multiple positions at AIDB and had not been selected. (Id. at 119:19-22). Katie Trotter had been moved, transferred, and promoted two or three times. (Id.).

         A job coach is assigned to a student to escort them to whatever employment they were training for, evaluate the student and determine what they could do and could not do, assist them in completing job applications and determining job duties, and assist them and check on them periodically. (Id. at 133:17-134:12). White's job experience was limited in scope as she had served in the same position since 2004. (Challender Aff. at 9); (Oldenburg Aff. at 4).[24] White did not have the education, experience or skill set for this position. (Id.).[25]

         White believes that “Katie came a couple of years after [she] had started at AIDB.” (White Depo. at 114:15-19). She further believes that she “probably had more years and experience, tenure than her and probably had my qualifications and everything before Katie”. (Id.). However, Trotter was completing her education degree. (Challender Aff. at 9-10). She had worked in the transition program at Helen Keller for three years, designing education modules to help students learn employment skills. (Id.).

         2. Job Coach Position Posted June 22, 2015

         White applied for this position, but she was not selected. (Challender Aff. at 10). Nephateria Jones, an African-American female, was selected. (Id. at 10-11). The position required “sign language proficiency” within “thirty (30) months of employment.” (White Ex. 28). It further required a CDL “within the first twelve (12) months of employment”, and to “maintain yearly certification for the Alabama School Bus Driver License.” (Id.). White believes that Jones “didn't get any of her qualifications for sign language and CPR's, CDL's.” (White Depo., 123:11-13). White also believes that Jones was overqualified. (White Depo., 122:20-21). Jones had a Master's degree in business. (Challender Aff. at 10). She had worked at a community college transition program helping place students in the community. (Id.). White believes Jones's hiring was “[r]etaliation for the EEOC.” (White Depo., 126:14). Jones was fired after approximately one year at AIDB. (Id. at 125:1-10).

         3. Job Coach Position Posted August 6, 2015

         White applied for this position, but did not receive anything acknowledging her application nor any correspondence indicating she had not been selected for the position. (White Depo. at 135:18-140:7). Shametra Miller, an African-American female, was selected. (Challender Aff. at 11). Miller has a B.A. from Talladega College and a M.Ed. in school counseling. (Id.). She was attending school for an Education Specialist degree. (Id.). She had worked at Talladega College as a Skill Enhancement faculty member. (Id.). She had taught 8th grade physical science. (Id.). Given what a Job Coach was expected to do in the community, working with private employers, and writing written reports, Defendants contend Miller was better qualified. (Id.). White believes that Miller was overqualified and that Miller was chosen for retaliatory reasons. (White Depo. at 137:9-138:20). Miller did not remain in the position a year. (Id.).

         4. Bus Guide Postings May 20, 2016

         A bus guide assists students on the school bus. It is a part-time position. White applied for it. She had a CDL (Commercial Driver's License) and was qualified for the position. She was interviewed but not selected. White's Ex. 31 indicates that AIDB removed staff from their CDL roster if they had not driven a bus for two years, or indicated that they felt uncomfortable driving a bus. (Doc. 40-31). It also indicates that White both had not driven a bus for two years, and moreover felt uncomfortable driving one. (Id.). Lizik was selected for the position. (Challender Aff. at 12). Lizik was already a bus guide. (Id.). She was experienced and well qualified. (Id.). Lizik was the bus guide for the Talladega to Montgomery route. (Id.). She applied for this position to have a shorter route closer to home. (Id.). In her deposition, White stated the following:

MR. SWEENEY: [Lizik] would [have] had more experience as a bus guide than you for that position because she was already a bus guide?
A. Yes.

(White Depo., 153:6-10). White claims discrimination regarding this position because she was not selected.

         5. Job Coach Position Posted August 23, 2016

         White applied for the position, but it was never filled. (White Depo. at 159:1-3). The position was advertised on August 23, 2016, just before the new principal, Sandra Ware, assumed her position on September 1, 2016. (Challender Aff. at 12-13). Ware is an African-American female. (Id. at 13). When she assumed her position as the new principal, she decided that another Job Coach was not the best use of Helen Keller's resources. (Id.). She determined that the funds for this position could be better used for other administrative positions. (Ware Aff. at 2). At least as of August 23, 2017, an additional Job Coach has not been added. (Id.). White believes the Defendants' were retaliating against her. (White Depo., 157:2-9).

         e. Allegations of Hostile Work Environment

         1. Asking White To Write a Statement of Fact Regarding Improper Medicine Given to a Student on August 13, 2013

         On August 12, 2013, White administered incorrect medication to a student. The student was taken to the hospital emergency room. (Challender Aff. at 6). Given the serious nature of the matter, Freida Meachem, Vice President of AIDB, requested that White write a statement about what happened. (Id.). She was never reprimanded. (Id. at 7). It took her five minutes to write. (White Depo., 232:2-4). The concern was that the student might not make it. (Atkinson Depo., 97:12-18). There is evidence that Atkinson did not know what the proper protocol regarding statements was, and that other employees had not written these additional statements. (Atkinson Depo., 53:14-21, 5418-23); (White Ex. 19, 20).

         2. White's Claims Regarding the Horse Barn

         White was denied the option to go to the horse barn on Tuesdays and Thursdays. (White Depo., 163:15-22). Instead, she was assigned to stay behind at the campus with a student. (Id. at 165:6-9). She believes this was retaliation. (Id. at 171:7-10). The other employees who went to the horse barn were white females. (Id. at 172:4-13). White did not complain to her supervisors about having to stay back from the horse barn. (Id. at 170:25 to 171:10). However, she mentioned the horse barn issues in an EEOC complaint dated January 28, 2013. (White Ex. 32).

         White did not point to evidence directly controverting the Defendants' reason for excluding her from the horse barn - she notified her superiors that she had allergies. (Oldenburg Aff. at 6, Appendix A). This fact is deemed admitted.

         3. White's Claims She Was Prevented from Attending a Student's Graduation

         Taken in the light most favorable to White, Jennifer Oldenburg told her to stay in the dormitory and clean during a student's graduation. (White Depo. at 187:9- 13).[26] She had cleaned the dorm the night before, and instead left work immediately. (Id. at 189:4-15). She believes this was discriminatory because two white females got to attend, and she was told to clean. (Id. at 189:20-22). She complained about this incident. (Id. at 190:5-9).

         4. Request Not To Have Baby Shower During Academic Hours

         White asked to have a baby shower between 1p.m. and 3 p.m. (White Depo., 196:7-198:5). This time period was during academic time for Awakenings students. (Id.). White was not prevented from having the baby shower, just not at those hours. (Id.). However, others had sent out invitations for baby showers during that time. (White Ex. 12, 13, 14).

         f. Allegations of Disparate Compensation Pay; ...


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