United States District Court, N.D. Alabama, Northeastern Division
MEMORANDUM OPINION AND ORDER
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE
Richard Bragg alleges that defendant Huntsville City Board of
Education forced him to retire because of his age in
violation of the Age Discrimination in Employment Act (ADEA).
Pursuant to Rule 56 of the Federal Rules of Civil Procedure,
the Board asks the Court to enter summary judgment in in its
favor. (Doc. 45). The Board also asks the Court to strike
portions of Mr. Bragg's responsive brief and affidavit.
(Doc. 59). For the following reasons, the Court denies the
Board's motion to strike and enters summary judgment for
SUMMARY JUDGMENT STANDARD
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). To demonstrate that there is a genuine
dispute as to a material fact that precludes summary
judgment, a party opposing a motion for summary judgment must
cite “to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.”
Fed.R.Civ.P. 56(c)(1)(A). “‘Genuine disputes [of
material fact] are those in which the evidence is such that a
reasonable jury could return a verdict for the non-movant.
For factual issues to be considered genuine, they must have a
real basis in the record.'” Evans v.
Books-A-Million, 762 F.3d 1288, 1294 (11th Cir. 2014)
(quoting Mize v. Jefferson City Bd. of Educ., 93
F.3d 739, 742 (11th Cir. 1996)).
considering a motion for summary judgment, the Court must
view the evidence in the record in the light most favorable
to the non-moving party and draw reasonable inferences in
favor of the non-moving party. White v. Beltram Edge Tool
Supply, Inc., 789 F.3d 1188, 1191 (11th Cir. 2015). Even
if the Court doubts the veracity of the evidence, the Court
cannot make credibility determinations of the evidence.
Feliciano v. City of Miami Beach, 707 F.3d 1244,
1252 (11th Cir. 2013) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986)).
FACTUAL AND PROCEDURAL BACKGROUND
Bragg worked for the Board as a physical education aide at
Montview Elementary School from September 1996 until he
retired in February 2015. (Doc. 55-1, p. 2, ¶¶
3-4). Mr. Bragg assisted in P.E., monitored students before
and during breakfast, restrained children when necessary to
prevent fights, and participated in safety patrol. (Doc.
47-1, p. 9).
Bragg was 60 years old and eligible for benefits when he
retired after the Board's then-superintendent, Dr. Casey
Wardynski, proposed that the Board terminate Mr. Bragg's
employment. (Doc. 55-1, p. 3, ¶ 7). Three events in 2014
formed the basis for the proposed termination. Consistent
with the summary judgment standard, the Court will present
the facts of these and subsequent events in the light most
favorable to Mr. Bragg and draw reasonable inferences in his
The February 18, 2014 Accusations
February 18, 2014, Towana Davis, the principal of Montview
Elementary, received notice that a group of fifth grade
students had accused Mr. Bragg of inappropriate conduct.
(Doc. 47-1, pp. 10, 66). The students accused Mr. Bragg of
taunting students; standing in the doorway of the girls'
restroom and making snide remarks; threatening students;
insulting students; invading students' personal space;
bullying students; yelling at students; inappropriately
touching students; and inappropriately grabbing students.
(Doc. 47-1, p. 66). Mr. Bragg testified that one of the
accusers, a fifth grade student, was a “ring leader
going around and getting [her] friends to say things.”
(Doc. 47-1, p. 10). An accusing student's parent told the
student to not say things just because her friends were
saying them. (Doc. 47-1, p. 10).
Davis “spent the day investigating the
accusations.” (Doc. 47-1, p. 64). She first met with
the students to hear their complaint. (Doc. 47-1, p. 65).
Then she met with Mr. Bragg. (Doc. 47-1, p. 65). At the
meeting, Mr. Bragg denied the accusations. (Doc. 47-1, pp.
10-11). Ms. Davis instructed Mr. Bragg to be careful and to
keep his hands off students, and she asked him to prepare a
written response to the students' accusations. (Doc.
47-1, p. 12, tr. p. 42; Doc. 47-1, p. 65). Mr. Bragg
indicated that it would be difficult to never touch a student
because he was “the restraint person at the school,
” meaning he was trained by the school to restrain
students from fighting. (Doc. 47-1, p. 12, tr. p. 42). Even
after the allegations of inappropriate touching, school
officials still called Mr. Bragg to “handle children
that were out of line in classes or in the hall.” (Doc.
47-1, p. 12, tr. p. 42).
Ms. Davis met with Mr. Bragg, she met with a physical
education teacher, Mark Wilkins, and she again “met
with the students collectively and gave them an opportunity
to tell their side of the story” and “share any
further information.” (Doc. 47-1, p. 65).
Bragg submitted his written response to the allegations. He
Taunting of students has never happened. They talk back to
other adults as well as myself. I correct them, but they talk
back or make remarks. I have only stood outside the
bathrooms when I have been told to because they are
misbehaving. I have never in my 18 years threatened a
student, other than saying I will call a parent or tell
someone. Insulting students has never happened. I have told
children that in [the] past kids did not talk back or
disrespect any adults.
Invading personal space only has happened when I had to get
in a child['s] face to get attention.
Bullying has not happened-yelling is my last thing I turn to.
Yelling is when class is loud.
Touching has NEVER happened to any children [in 18 years, and
these accusations have never happened].
I would be more than glad to talk to any student and their
[I am] a strong disciplinarian, but [everything] is false
(Doc. 47-1, p. 67).
deposition, when asked about the February 2014 allegations,
Mr. Bragg testified that he never taunted, threatened,
insulted, bullied, inappropriately touched or grabbed, or
invaded the personal space of students. (Doc. 47-1, pp.
10-11). Mr. Bragg testified that he stood outside the
girls' bathroom only because some girls had been fighting
in the bathroom, and Ms. Davis asked him and another teacher,
Amy Clark, to stand outside the bathroom and make sure the
students got to class without fighting. (Doc. 47-1, pp.
9-10). Mr. Bragg testified that he never yelled at a student
unless he had to “get over the noise . . . in a
gym” and acknowledged that his voice might come across
as harsh because he is a coach. (Doc. 47-1, p. 11). Mr. Bragg
testified that he grabbed students only when he had to
restrain a student from a fight or “anything where a
child had to be restrained.” (Doc. 47-1, p. 11).
Bragg suspected that the students might have told
“untruths” about him because Mr. Bragg previously
had disciplined the students. (Doc. 47-1, p. 15). As an aide,
Mr. Bragg sometimes had to monitor classes, during which he
had to tell students to pay attention to the teacher. (Doc.
47-1, p. 15). He also had to supervise students in the
morning before the cafeteria opened and make sure things ran
smoothly during breakfast. (Doc. 47-1, p. 16). According to
Mr. Bragg, the students who complained about him all had past
behavior problems. (Doc. 47-1, p. 15, tr. p. 56). The same
students had also accused Ms. Clark of being mean to them and
calling them names. (Doc. 47-1, p. 16, tr. p. 57).
end of the day, Ms. Davis sent a letter to Helen Scott, the
Board's director of instruction. (Doc. 47-1, p. 64). In
the letter, Ms. Davis questioned the credibility of the
I wanted to let you know that I have spent the day
investigating the accusations made by my 5th grade students
against Mr. Richard Bragg (PE instructional aide). Not only
did I speak with the students, but I also held conversations
with Mr. Mark Wilkins and Mr. Richard Bragg. I felt compelled
to share with you my personal feelings regarding the entire
situation. Although some of the minor accusations may contain
an “ounce” of truth, it is accurate to say that
the majority of the students making the accusations have
previously voiced their strong dislike for Coach Bragg.
Additionally, these students have a strong dislike for any
authority figure who attempts to instill respectful behavior.
Also, it should also be noted that these students [have]
chronic behavior problems.
(Doc. 47-1, p. 64). Ms. Davis testified that she wrote this
“because the students often complained about him for
minor -- whatever. And so I just wanted [Ms. Scott] to make
sure that when she received all of this information that she
knew that there was a possibility that some things may have
been said because they did not like him.” (Doc. 47-3,
Bragg feels that Ms. Davis's letter “stated
basically that [he] didn't do anything.” (Doc.
47-1, p. 12, tr. p. 41). Dr. Wardynski testified that the
letter shows Ms. Davis “discounted [the students']
opinions.” (Doc. 47-2, p. 13). No formal reprimand or
disciplinary action came of the allegations.
The April 1, 2014 Incident
April 1, 2014, while Mr. Bragg was walking through the
lunchroom, he saw a female student about to start a fight
with a young man. (Doc. 47-1, pp. 13, 68). Mr. Bragg
“kind of tugged on her hood” and told her to turn
around. (Doc. 47-1, p. 13). The student said, “get your
damn hands off me.” (Doc. 47-1, p. 13, tr. p. 48). Mr.
Bragg told her, “wait a minute. I'm an adult. All
I'm trying to do is help you stay out of trouble.”
(Doc. 47-1, p. 13, tr. p. 48). Mr. Bragg then told the
student's teacher to watch her because she was about to
get into a fight. (Doc. 47-1, p. 13, tr. p. 48).
afterwards, the student met with Ms. Davis and wrote a
statement about the incident. (Doc. 47-1, pp. 14, 69). The
student wrote that Mr. Bragg grabbed her hoodie, put his hand
on her stomach, grabbed her arm tightly, pulled her to his
pants, and would not let go of her when she tried to pull
herself up. (Doc. 47-1, p. 69). Ms. Davis took notes of a
conversation she had with the student later that day. (Doc.
47-3, p. 11, tr. p. 40). Ms. Davis wrote that the student
said that she felt uncomfortable and that Mr. Bragg pulled
her hoodie, grabbed her arm and stomach, and pulled her
towards his “private area.” (Doc. 47-1, p. 69).
Davis spoke with the student's mother about the incident.
(Doc. 47-1, pp. 14, 69). Ms. Davis wrote that the
student's mother said that the student complained about
Mr. Bragg all year for screaming and yelling for no reason
and that the student was scared of Mr. Bragg and afraid of
repercussions for reporting him. (Doc. 47-1, p. 69).
Bragg met with Ms. Davis and denied that he rubbed the
student against his groin. (Doc. 47-1, p. 14, tr. p. 49). Mr.
Bragg wrote a statement about the incident:
. . . I could tell she was mad, so I gently tugged on her
jacket. She jerked and said “get your damn hands off of
me.” At that time I reached and touched her arm and
told her wait a minute you are acting up with the wrong
person. I am just trying to keep you out of trouble. She
continued at which I tried to tell her the wrong child will
knock her out. She used to be a member of school safety
patrol. She changed this year.
Ms. Donna Walker and I have tried to speak to her and she has
said we don't know her, because she is bad.
I have never hurt her at any time and I was trying to keep
her out of trouble.
(Doc. 47-1, p. 68).
student was one of Mr. Bragg's accusers in February 2014.
(Doc. 47-1, p. 13, tr. p. 47). According to Mr. Bragg, the
student previously made up a story about Ms. Walker. (Doc.
47-1, p. 15, tr. p. 55).
meeting on April 3, 2014, Ms. Davis told Mr. Bragg to be
careful about touching children and invading their private
space. (Doc. 47-1, p. 14, tr. p. 52). Mr. Bragg told Ms.
Davis that he would not touch children in a restraining
manner, but after the meeting, he still was called on to
discipline misbehaving students. (Doc. 47-1, p. 14, tr. p.
meeting, Ms. Davis gave Mr. Bragg a formal reprimand memo.
(Doc. 47-1, pp. 14, 56). In the memo, Ms. Davis mentioned
that she informed Mr. Bragg that the February 2014
allegations were serious claims that may warrant district
level disciplinary actions. (Doc. 47-1, p. 56). Ms. Davis
stated that she was “greatly concerned that these
accusations have reoccurred since our last meeting. I was
very direct when stating that you must maintain a
‘hands off approach' with respect to all
children.” (Doc. 47-1, p. 56). Ms. Davis reprimanded
Mr. Bragg for “fail[ing] to adhere to directives from
this office.” (Doc. 47-1, p. 56).
April 15, 2014, Mr. Bragg sent to Ms. Davis and the
Board's compliance director, Belinda Williams, a response
to the reprimand because he felt “that some facts
should be addressed.” (Doc. 47-1, p. 72). In the
letter, Mr. Bragg stated:
. . . I have tried to help our students excel in class as
well as in life. In return all I have asked for is children
to have respect for ALL adults and to behave in an age
As to the accusations on February 18th and April 1st, it has
been proven that I did none of the things I was accused of. I
am strict in my methods as I have been for 18 years but have
always had the students' best interests at heart. These
past two years we have seen, by far, the worst behavior out
of our students. I am constantly cursed at, told to shut up,
talked back to and the list could go on. I feel most of the
children want some form of discipline because they lack it in
the home. There is no accountability for the parents.
In my opinion having a reprimand put in my file is unjust
because the accusations were not substantiated. I have always
followed the directives and procedures. I will however
maintain a “hands ...