United States District Court, N.D. Alabama, Eastern Division
MEMORANDUM OPINION 
G. CORNELIUS U.S. MAGISTRATE JUDGE
pending is the motion for summary judgment filed by Defendant
Talladega College. (Doc. 23). Plaintiff Penny Nielson has
responded, and Defendant has replied. (Docs. 30, 31).
Accordingly, this matter is fully briefed and is ripe for
adjudication. For the reasons that follow, the motion will be
granted in its entirety.
who has "an earned doctorate in curriculum and
instruction - reading, " was a faculty member at
numerous colleges and universities between 1971 and 2013.
(Doc. 30-1 at 1-2). Talladega College is a private liberal
arts college and is the "oldest fully-accredited
historically black private college in the state of
Alabama." (Doc. 24 at 2-3). During the time period
relevant to this lawsuit: (1) Billy Hawkins was President;
and (2) Lisa Long was the Provost and Vice-President of
Academic Affairs. (Doc. 24 at 3).
April 3, 2013, Long recommended hiring Plaintiff as a Reading
Specialist in the College's Elementary Education/Special
Education Collaborative Program. (Doc. 25-4 at 7;
see Doc. 24 at 4). On April 5, Hawkins issued a
letter of employment to Plaintiff, confirming her employment
as a Reading Specialist for the end of the 2012-13 academic
year, effective April 8, 2013, to May 13, 2013. (Doc. 25-4 at
9; see Doc. 24 at 4). Plaintiff worked full-time for
the College during this five-week period. (Doc. 24 at 4). On
May 1, 2013, Hawkins issued another letter confirming
Plaintiff's employment as a Reading Specialist for the
2013-14 academic year, effective August 13, 2013, to May 14,
2014. (Doc. 25-4 at 11; see Doc. 24 at 4-5). Both
employment letters noted Plaintiff's employment was
"at will" and could be terminated at any time,
without cause or notice, and at the sole discretion of
Talladega College. (Doc. 25-4 at 9, 11).
the 2013-14 academic year, there were four faculty members in
the Education Department: (1) Plaintiff; (2) Dionne Edison;
(3) Lemanski Walker; and (4) Karen Petty. (Doc. 24 at 5).
Edison was chair of the department and Plaintiff's
immediate supervisor. (Doc. 24 at 6). Edison, Walker, and
Petty are black; Plaintiff is white. (Id. at 1, 5).
Petty was hired on November 1, 2013, but Plaintiff contends
Petty did not teach any classes or do any other work in
November or December 2013. (Doc. 30-1 at 4; see Doc.
24 at 5). Plaintiff contends Petty's hiring was improper
because Plaintiff was scheduled to interview her prior to
hiring; however, Petty was hired before the scheduled
interview, which never took place. (Doc. 30-2 at 2).
Plaintiff testified her education and experience was superior
to that of her colleagues, including Edison. (Doc. 25-1 at
32). Plaintiff described Edison's and Petty's
educational credentials as "pitiful" and noted she
had vastly greater experience than Petty and Walker.
(Id.). Plaintiff described her departmental
colleagues variously as Talladega College's "black
pet[s], " "little pets, " or "little
black people." (Doc. 25-1 at 17, 34, 36).
September 17, 2013, Plaintiff reported in an email to Long
that Edison had spoken to her inappropriately in the presence
of students. (Doc. 25-1 at 44; see Doc. 24 at 7).
The disturbance was triggered by a dispute regarding the
deadline for students to register for fingerprinting (the
"Fingerprint Confrontation"). (Doc. 25-1 at 44).
Plaintiff's email complaint to Long does not include any
reference to race, religion, or age. (Id.).
Plaintiff reported Edison was loud and insulting and her
behavior led students to drop Plaintiff's class. (Doc.
30-1 at 5).
September 30, 2013, Plaintiff sent an email to Edison-with
copies to Long and Walker-complaining about syllabi Edison
had developed and required faculty to use (the "Syllabus
Complaint"). (Doc. 24 at 7; Doc. 30-1 at
In the email, Nielson states the syllabi are "not good,
" disorganized, and contain confusing assignments. (Doc.
25-1 at 45). Plaintiff further noted Edison refused to answer
her students' questions regarding the syllabi and
assignments. (Id.). As with the Fingerprint
Confrontation, the email regarding the Syllabus Complaint
does not explicitly contend the syllabi or Edison's
actions were in any way discriminatory. (Id.).
Plaintiff testified she considered Edison's refusal to
answer her students' questions to be racially
discriminatory because she believes Edison would have
answered questions from a black professor's students.
(Id. at 15).
Education Department has a copier that can be used to scan
and email documents to a list of programmed recipients. (Doc.
25-1at 13). Plaintiff testified Edison entered faculty
members' names into the scanner; while Edison correctly
entered the names of "all the blacks, " she
misspelled Plaintiff's name. (Id. at 14). Edison
testified she did not intentionally misspell Plaintiff's
name. (Doc. 25-3 at 19-20). When Plaintiff brought the
misspelling to Edison's attention, Edison refused to fix
it; Edison invited Plaintiff to fix the misspelling herself
but did not provide any instructions, explaining that she had
quickly learned how to enter the names on the scanner. (Doc.
25-1at 13; see Doc. 25-3 at 20). Plaintiff
complained to Long regarding this incident (the "Scanner
Misspelling"). (Doc. 25-1 at 13). Plaintiff testified
she thought Edison purposefully misspelled her name as a form
of racial discrimination because Edison was "very
ugly" and "treated the blacks totally
Plaintiff was disturbed by an incident in which Edison
admitted to a student that Edison had Attention Deficit
Disorder and did not take medication for the condition. (Doc.
25-1 at 17). Plaintiff complained to Long about the
conversation and testified that Long took no action.
(Id.). Plaintiff further testified that she
considered this to be a "violation" (the "ADD
Violation") because Long failed to "protect"
Plaintiff. (Id.). Plaintiff does not explain her
theory regarding what species of discriminatory animus
motivated the ADD Violation, but she testified students were
quitting the program because of Edison's non-medicated
the Fall 2013 semester, Edison received free posters and
booklets entitled "The Way to Happiness." (Doc.
25-3 at 11; see Doc. 24 at 8). Edison testified she
thought the principles espoused in the materials were
positive and she did not consider the information to be
religious in nature. (Doc. 25-3 at 11).Edison gave copies
of the booklet to the Education Department faculty, including
Plaintiff. (Id.; Doc. 25-1 at 20-21). Edison also
gave the posters to another Talladega College employee who
posted them in the student center, located in another campus
building. (See Doc. 25-3 at 11; Doc. 25-1 at 21;
Doc. 25-3 at 16). Plaintiff was upset by the materials, which
were distributed by a group affiliated with the Church of
Scientology. (Doc. 25-1 at 21). Edison testified that she is
not a scientologist. (Doc. 25-3 at 18). Plaintiff never read
the booklets because she didn't "want Scientology
pushed down [her] throat." (Doc. 25-1 at 21).
Approximately two or three weeks later, another employee told
Edison that Plaintiff stated the materials were distributed
by the Church of Scientology; the employee showed Edison the
church's logo-a sunrise icon-on the materials. (Doc. 25-3
at 12; Doc. 30-1 at 17). Edison testified she subsequently
approached Plaintiff, spoke to her about the matter, and then
"left it alone." (Doc. 25-3 at 12). Meanwhile,
Plaintiff testified that Edison was yelling during this
confrontation and "berated" her for complaining
about the materials. (Doc. 25-1 at 21). Plaintiff avers
Edison continued distributing The Way to Happiness materials
to students and that Long was aware of this. (Doc. 30-2 at
3). Plaintiff also testified she interpreted Edison's
behavior as "bragging that those Scientology posters are
still posted on Talladega College campus." (Doc. 25-1 at
December 17, 2013, Plaintiff emailed Edison expressing
concern with a portion of the curriculum for an educational
psychology course to be taught during the following semester.
(Doc. 25-1 at 45). Plaintiff took issue with the inclusion of
an exercise called "Teaching Tolerance, " which was
provided on the Southern Poverty Law Center's
("SPLC") website. (Id.). Plaintiff noted
the exercise required students to register with the SPLC,
which Plaintiff described as a group "actively promoting
the gay agenda." (Id.). Plaintiff noted her
opposition to utilizing Teaching Tolerance; her concern was
based on "requiring students to register at this
December 19, 2013 response-on which Long was copied-began by
quoting the College's non-discrimination policy, which
prohibits discrimination on many bases, including sexual
orientation, disability, or religion. (Doc. 25-1 at 45).
Edison's response continued:
This term you have expressed deep concerns about the Church
of Scientology, what people eat, individuals with
disabilities and now sexual orientation. In each instance I
could not find where the information provided or the
individual involved was at odds with the mission of this
institution, the State standards or Alabama law.
(Doc. 25-1 at 45). Edison also noted she had not received any
complaints regarding use of SPLC materials during the
previous ten years. (Id.). Edison also offered to
print the exercise for Plaintiff, so she would not have to
register with the SPLC, to the extent Plaintiff would be
offended by directly accessing the SPLC materials; Edison
extended the same offer regarding any students who had
similar concerns. (Id.). The response also invited
Plaintiff to propose other materials to substitute for
Teaching Tolerance. (Id.). Edison's response
concluded that she "appreciate[d Plaintiff's]
willingness to share [her] concern." (Id.).
Plaintiff and Edison subsequently met in Edison's office,
where Edison accessed and performed the exercise with
Plaintiff; Edison stated she was trying to be helpful since
Plaintiff did not want to register on the SPLC website. (Doc.
25-3 at 19). Plaintiff considered this to be discriminatory
and/or retaliatory. (Doc. 30-1 at 6; Doc. 30-2 at 3).
also testified about a number of incidents to support claims
for a hostile work environment. While Plaintiff has abandoned
her hostile work environment claims, she contends the
underlying facts support her claims for discrimination and
retaliation regarding her nonrenewal. (Doc. 30-1 at 22 nn.8-
9). These incidents include that: (1) Edison would "talk
over" her in meetings with Long (Doc. 25-1 at 29); (2)
Edison sent email complaints to Long regarding Plaintiff
(id.); (3) Edison told another employee she did not
want to sit by Plaintiff at a departmental function
(id. at 18); and (4) Long said she would have
"to decide if she would let [Plaintiff] teach other
people's children" (id. at 29). Plaintiff
felt these incidents were racially and religiously
discriminatory because Edison and Long are black and
Plaintiff is white. (Doc. 25-1 at 18, 29). Plaintiff also
testified that, during Walker's interview, Edison stated
"she wanted a black male." (Doc. 25-1 at
Plaintiff also testified students' files were stored in
Walker's office; Plaintiff needed access to the files for
advising purposes. (Id.). Plaintiff did not have a
key to Walker's office, and Edison refused to move the
files to another location. (Id.). Plaintiff
considered this to be a form of racial discrimination.
religious discrimination, Plaintiff testified Edison knew she
was a Seventh Day Adventist because Plaintiff told her
sometime during the Spring of 2013. (Doc. 25-1 at 19). Edison
responded by saying the Seventh Day Adventists she knew were
vegetarians. (Id.). Edison testified she knew
Plaintiff was a vegetarian because, during departmental
functions where food was served, Plaintiff had said
"meat defiles the body." (Doc. 25-3 at
December 2013, Edison wrote Long a letter recommending
Plaintiff's employment not be renewed for the following
academic year. (Doc. 25-2 at 12; Doc. 25-3 at 6-7). Edison
testified Plaintiff was not the right "fit" for the
Education Department. (Id. at 6). Edison testified
she reached this conclusion based on her opinion that
Plaintiff failed to follow direction and departmental
standards, including: (1) refusal to make copies of a
handbook for students; (2) failure to transport students to
field experiences punctually; (3) tardiness; (4) an incident
during which Plaintiff raised her voice to a student; and (5)
failure to timely provide a math module to students (Doc.
25-3 at 7-11, 19). Plaintiff was never formally disciplined
for these or any other incidents, and documentation of these
incidents does not appear on the record. (See Doc.
30-1 at 14, 17). In response to Talladega College's
proffered reasons for nonrenewal, Plaintiff disputes
Edison's version of events regarding each of the
incidents; Plaintiff contends she followed directions and
departmental standards. (See Id. at 7).
reviewed Edison's recommendation and, on February 25,
2014, wrote Hawkins a letter recommending Plaintiff's
employment not be renewed for the 2014-15 academic year.
(Doc. 25-4 at 13). Long testified she relied on Edison's
recommendation,  her experiences attempting to resolve
disputes involving Plaintiff, and negative feed-back in a
student evaluation. (Doc. 25-2 at 40). Long testified
Plaintiff demonstrated a lack of cooperation in adhering to
syllabi and responding to supervisor directives.
(Id.). In response, Plaintiff disputes that she
failed to cooperate in any way or that any complaints about
her were meritorious. (Doc. 30-1 at 8). In any event, on the
same day he received Long's recommendation, Hawkins
issued a letter to Plaintiff informing her that her
employment would not be renewed for the following year. (Doc.
25-4 at 15). Long hand-delivered the nonrenewal letter to
Plaintiff and told her to "have a nice day." (Doc.
30-1 at 21). Plaintiff felt Long's salutation "was
racial." (Id.). The other Education Department
faculty members were renewed for the following year.
April 4, 2014, Edison prepared a faculty evaluation for
Plaintiff, assigning her 77 points out of 100 possible
points. (Doc. 25-1 at 46). Edison's observations
included: "[p]eriodic conflicts on student issues,
" "limited attendance at institutional functions,
" and "periodic conflicts completing other duties
as designated." (Id.). Plaintiff responded in
her observations that the evaluation was incomplete and
opined that Long and Edison applied a higher standard to
Plaintiff while showing "favoritism toward others."
(Id.). Edison testified that a score of 77 on an
evaluation would not render a professor unfit for employment
or retention with Talladega College. (Doc. 25-3 at 21).
submitted a formal complaint to the college regarding her
nonrenewal. The complaint alleged racial and age
discrimination and contended the timing of the nonrenewal
violated Talladega College's policies. (Doc. 25-1 at
47-48). Regarding the timing of the nonrenewal, section 3.5.1
of the 2008 version of the Faculty Handbook includes the
following provision entitled "Non-Reappointment:"
of non-reappointment should be given in writing in accordance
with the following standards:
a. not later than March 1 of the first academic year of
service, if the appointment expires at the end of the year .
b. not later than December 15 of the second academic year of
service, if the appointment expires at the end of that year .
. . .
(Doc. 25-4 at 4). The Faculty Handbook does not explicitly
define what constitutes an "academic year of
service." Plaintiff contends that, due to her employment
from April to May 2013, the 2013-14 academic year was her
second year of service. As Plaintiff would have it, the
timing of any nonrenewal decision was governed by section
3.5.1.b. and required notice by December 15, 2013.
Accordingly, Plaintiff argues her February 25, 2014
nonrenewal violated the Faculty Handbook. In response to
Plaintiff's internal complaint, Talladega College
determined Plaintiff's five weeks of employment from
April to May 2013 did not constitute an academic year. (Doc.
25-1 at 48). Accordingly, the College found the nonrenewal
was governed by, and complied with, section 3.5.1.a.
College did not hire a new Reading Specialist to replace
Plaintiff for the 2014-15 academic year. (Doc. 24 at 15).
Instead, Plaintiff's duties were assumed by the remaining
Education Department faculty for the following year. (Doc.
30-1 at 16). Rebecca McKay, a 65-year-old white female filled
the Reading Specialist position in September 2015 and, as of
October 2016, was still employed in that capacity. (Doc. 24
at 15). Hawkins hired McKay on the recommendation of Edison
and Long. (Doc. 24 at 15). In September 2014, Walker left the
Education Department; he was replaced by Rebecca Robinson, a
61-year-old white female. (Doc. 24 at 15). Although Plaintiff
acknowledged she had no knowledge regarding these subsequent
hires, she testified to her belief that they were hired in
order to cover-up her discriminatory termination. (Doc. 25-1
at 31). Plaintiff was hired in August 2016 for a temporary
position as an Associate Professor of Education at Alabama
A&M University. (Doc. 30-1 at 18).
STANDARD OF REVIEW
Federal Rule of Civil Procedure 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 (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. Id. at 323. Once the moving party has
met its burden, Rule 56(e) requires the non-moving party to
go beyond the pleadings and by his own affidavits, or by the
depositions, answers to interrogatories, and admissions on
file, designate specific facts showing there is a genuine
issue for trial. See Id. at 324.
substantive law identifies which facts are material and which
are irrelevant. See 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. 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. at 249.