Tipton v. Houston County Board of Education

          MEMORANDUM OPINION AND ORDER

          W. KEITH WATKINS UNITED STATES DISTRICT JUDGE

         Shannon Tipton wanted to be the Accountability Coordinator for the Houston County school system, but she could get that job only if the Houston County Board of Education hired her. In May 2017, the Board voted four-to-three not to hire her. Why?

         Tipton thinks she did not get the job because she campaigned for David Sewell when he ran for county superintendent of education. Sewell won that race by beating Matt Swann, a close relative of two Board members, in the March 2016 primary. So Tipton brings this suit for First Amendment retaliation against the Board, the Board members who voted against her, the superintendent who Sewell replaced, and a retired Board member who never had the chance to vote on her nomination.

         Defendants insist they did not know that Tipton supported Sewell. They also proffer legitimate reasons for their actions. Each Board member who voted against Tipton says there was no need to hire anyone for the Accountability Coordinator job. And, in fact, that position is vacant today; other employees perform its duties, and the Board saves money as a result. Several Defendants were also concerned about Tipton's work history and ability to get along with others. Two Board members who voted for Tipton recognized these concerns about saving money and Tipton's ability to get along with others. The third Board member who voted for Tipton is her cousin, and he has said that she can be hard to get along with.

         To survive summary judgment, Tipton must show that a reasonable jury could find that each Defendant knew she supported Sewell and was motivated to retaliate against her because of it. Yet there is only cognizable evidence that one Defendant knew about her support for Sewell. And no reasonable jury could find, based on the cognizable evidence, that Tipton's political activities motivated any Defendant. As a result, Defendants' motion for summary judgment is due to be granted.

         I. JURISDICTION AND VENUE

         The court has federal-question subject-matter jurisdiction. 28 U.S.C. §§ 1331, 1343. The parties do not dispute personal jurisdiction or venue.

         II. STANDARD OF REVIEW

         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). The framework and rules that govern motions for summary judgment ought to be familiar by now. But some repetition seems to be required.

         As the moving party, Defendants bear the initial responsibility of showing that summary judgment is proper. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-58 (1970). This responsibility includes identifying the parts of the record that reflect the lack of a genuine dispute of material fact. Celotex, 477 U.S. at 323; Fed.R.Civ.P. 56(c)(1)(A). But if Tipton must prove a fact at trial, Defendants may simply assert (without citing the record) that she “cannot produce admissible evidence” to support that fact. Fed.R.Civ.P. 56(c)(1)(B).

         If Defendants meet their burden, then the burden shifts to Tipton to show that there is a genuine dispute about a material fact. Celotex, 477 U.S. at 324; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To meet her burden, Tipton “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Instead, she must show there is sufficient evidence for a reasonable jury to return a verdict in her favor. Anderson, 477 U.S. at 252. Evidence that “is merely colorable, or is not significantly probative, ” will not create a genuine dispute. Id. at 249-50 (cleaned up). Nor will the “mere existence of a scintilla of evidence.” Id. at 252.

         In determining whether a genuine dispute exists, the court views the evidence - and all reasonable inferences drawn from it - in the light most favorable to Tipton. Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010). At the same time, however, the court draws inferences “only to the extent supportable by the record.” Id. (cleaned up); see Marshall v. City of Cape Coral, 797 F.2d 1555, 1559 (11th Cir. 1986) (noting “inferences based upon speculation are not reasonable”). And not everything labeled “evidence” is cognizable; the court “may consider only that evidence which can be reduced to an admissible form.” Rowell v. BellSouth Corp., 433 F.3d 794, 800 (11th Cir. 2005). Hearsay rules, for example, still apply. See Macuba v. Deboer, 193 F.3d 1316, 1324 (11th Cir. 1999). And testimony must be based on personal knowledge. Corwin v. Walt Disney Co., 475 F.3d 1239, 1249 (11th Cir. 2007); Pace v. Capobianco, 283 F.3d 1275, 1278-79 (11th Cir. 2002).

         In short, “mere conclusions and unsupported factual allegations” will not defeat summary judgment. Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989) (cleaned up). Tipton must have evidence - not just “speculation, innuendo and rhetoric.” Johnson v. Champions, 990 F.Supp.2d 1226, 1244 (S.D. Ala. 2014).

         III. BACKGROUND

         Tipton brings this lawsuit against the Houston County Board of Education and six individuals: Tim Pitchford, Bobby Harrell, Jimmy Kilgore, Ken Lane, Gary Cox, and Marty Collins (together, Defendants). The background for this lawsuit is simple. First, Tipton supported David Sewell when he ran to be the county superintendent of education. Second, after Sewell won, Sewell wanted Tipton to take his job as the Accountability Coordinator. Third, the Board voted not to hire Tipton.

         A. Tipton supported Sewell in his successful bid to become superintendent.

         The Houston County Board of Education administers and oversees the county public school system in Alabama's southeasternmost county. Ala. Code §§ 16-8-8, 16-8-9. The Board has seven members. Id. § 16-8-2. It also has a chief executive officer, the county superintendent of education. Id. §§ 16-9-1, 16-9-13. Like the seven board members, the superintendent is an elected official. See Id. § 16-9-8. But the superintendent has no vote on the Board. Id. § 16-8-7. Instead, he works for the Board. See Edmonds v. Bronner, 547 So.2d 1172, 1176 (Ala. 1989).

         From 2004 to 2016, Defendant Tim Pitchford was the superintendent. (Doc. # 52-1, at 74.) When he decided not to seek reelection, two candidates - David Sewell and Matt Swann - vied to take his place. Both Sewell and Swann are Republicans, so they had to square-off in the March 2016 primary. The race was not contentious between them, however. In fact, Sewell and Swann went together to file campaign paperwork, and they stayed on good terms during and after the election. They still chat about once a week. (Doc. # 52-1, at 82-87.)

         Tipton campaigned for Sewell in the primary. She donated $100, put up signs (including one in her yard), passed out flyers, wore a campaign t-shirt, put a magnet on her car, and posted on Facebook about her support. Her husband helped build signs, and her family members put up signs in their yards. None of that is surprising given that Tipton and Sewell are friends. They have known each other since he was her middle-school math teacher. (Doc. # 52-1, at 7, 19-23, 111; Doc. # 57-2, at 35.)

         Sewell defeated Swann in the primary. Because they were the only candidates to succeed Pitchford (no Democrat ran for the office), this victory made Sewell the presumptive new superintendent. (Doc. # 52-1, at 86.) On the night of the primary, Tipton hosted a party for Sewell at her house. She later helped prepare food for a “thank-you meal” that Sewell held. (Doc. # 52-1, at 19-20, 111; Doc. # 57-2, at 35- 36; Doc. # 57-7, at 16.)

         Although Sewell was the heir-apparent in March, he would not start his term until the next January. See Ala. Code § 16-9-8(a) (stating “the successful candidate shall take office on January 1 following the date of election”). Pitchford had at first planned to retire in April and let Sewell start early. But Pitchford changed his mind after an accreditation team encouraged him to serve his full term. (Doc. # 52-1, at 71-72, 77-78.)^[1] Thus, there was a ten-month overlap between Pitchford and Sewell. Pitchford used that time to show Sewell the ropes. (Doc. # 52-1, at 78.)

         B. Tipton was nominated to fill Sewell's old position.

         In March 2016, Sewell was the “Accountability Coordinator/Data Manager” in the Board's central office. (Doc. # 52-1, at 82.) His primary victory meant that position would soon be vacant. Pitchford recommended that Sewell advertise the position so that there would be enough time for Sewell to train his successor. (Doc. # 52-1, at 75, 117-18.) Sewell took that advice and posted a job description online in June 2016. (Doc. # 52-1, at 345.)

         Tipton applied for the job. This was not her first time applying for jobs with the Board. In fact, from 1999 to 2012, Tipton worked for the Board. She spent most of those years at Cottonwood High School - first as a teacher and then as a counselor. (Doc. # 52-1, at 23-27; Doc. # 57-10, at 18.) But in 2012, Tipton asked to transfer from Cottonwood to another school. (Doc. # 52-1, at 26-28; Doc. # 57-10, at 20; see Doc. # 52-1, at 222.) The Board approved the transfer, but Tipton resigned altogether six months later. (Doc. # 57-10, at 20; Doc. # 57-2, at 29.) For the next few years, she worked an array of short-term jobs in other school systems. (Doc. # 52-1, at 30-38.) In 2016, she was working for Dothan City Schools. Even after Tipton stopped working in the Houston County school system, however, she would apply for jobs with the Board. Before putting her name in for Accountability Coordinator, she applied to at least nine positions, including eight after she stopped working for the Board in 2012. (Doc. # 52-1, at 32-36, 345.)

         Tipton was not the only one who applied for the Accountability Coordinator job; twenty other people did, too. After receiving the applications, Rhonda Lassiter, the human resources director, cobbled-together an interview committee.^[2] That four-person committee interviewed eight applicants, including Tipton. Each interviewer ranked the top applicants. Applicant Catina Dixon got two first-place votes and two second-place votes. Tipton got two first-place votes, one second-place vote, and one third-place vote. (Doc. # 52-1, at 327.) Even though Dixon had more second-place votes, Lassiter named Tipton the number-one applicant. (Doc. # 52-2, at 15; Doc. # 57-7, at 39. But see Doc. # 52-1, at 76, 123.) Lassiter sent the interview results to Pitchford in July 2016. (Doc. # 52-1, at 327.) Pitchford was still the superintendent, after all. But Pitchford said he “did not have a preference” and deferred to Sewell. (Doc. # 52-1, at 75; Doc. # 57-7, at 39.) Sewell decided that Tipton was the best applicant for the Accountability Coordinator position.

         Yet neither Pitchford nor Sewell could unilaterally hire Tipton. All they could do was recommend her to the Board. Ala. Code §§ 16-8-23, 16-9-23; cf. Bd. of Sch. Comm'rs of Mobile Cty. v. Weaver, 99 So.3d 1210, 1220 (Ala. 2012) (“The superintendent is not vested with the authority to employ or to terminate principals and teachers beyond making a recommendation to the Board.”). So in July 2016, Pitchford nominated Tipton to the Board. (Doc. # 52-1, at 75-76, 91.)

         C. After a long delay, the Board voted not to confirm Tipton's nomination.

         Though Pitchford nominated Tipton in July 2016, the Board would not vote on her until ten months later, in May 2017. There were several reasons for the delay.

         The first two delays were Sewell's doing. There was a Board meeting in July 2016, and Tipton's nomination was circulated to the Board in preparation for that meeting (on a so-called “pre-agenda”). But then, for some unknown reason, Sewell had Tipton taken off the final meeting agenda. That meant the Board did not have the chance to vote on her at the July meeting. (Doc. # 52-1, at 59, 77, 267, 285; see Doc. # 52-1, at 107.) Tipton's nomination was next on the pre-agenda for the November 2016 meeting. But once again, Sewell took her name off the final agenda. This time, he gave an explanation: He did not have the votes to confirm her. (Doc. # 52-1, at 59, 77.)

         Tipton was also on the December 2016 pre-agenda. Yet again, she did not make it to a vote. This time, the delay was Pitchford's idea. The December meeting was Pitchford's last meeting as superintendent, and he thought he would be recognized at the end of it, perhaps with a reception. If there was a debate about Tipton's nomination, it would delay whatever celebration the Board had planned for him.^[3] So Pitchford asked Sewell for permission to take Tipton off the agenda, and Sewell consented. (Doc. # 52-1, at 62, 77, 108.)

         When the January 2017 Board meeting came around, Sewell had been sworn in as superintendent, and Tipton was again on the agenda. Still, there was more delay ahead. Ricky Moore, a Board member and Tipton's first-cousin once-removed, took Tipton off the final January agenda. Moore supported Tipton, and he wanted the vote of an absent member. (Doc. # 52-1, at 109, 210-12, 277; Doc. # 57-3, at 12.) Tipton reappeared on the February 2017 agenda, and Moore moved to confirm her. His motion failed for lack of a second. (Doc. # 52-1, at 213, 277.)

         The Board finally voted on Tipton at its May 2017 meeting. Since the Board can act only by majority vote, Tipton needed four Board members to confirm her nomination. Ala. Code § 16-8-4; Hamilton v. Montgomery Cty. Bd. of Educ., 122 F.Supp.2d 1273, 1285 (M.D. Ala. 2000). But four Board members - Defendants Jimmy Kilgore, Ken Lane, Gary Cox, and Marty Collins - voted not to hire her. The other three members - Ricky Moore, Scott Thomas, and David Hollinger - voted for her. (Doc. # 52-1, at 278.) Defendant Bobby Harrell did not (and could not) vote; he had retired from the Board in October 2016, and Collins had taken his seat. (Doc. # 52-1, at 8, 145, 191, 206.)

         After the vote, Tipton sued Defendants under 42 U.S.C. § 1983 for violating the First Amendment. (Docs. # 1, 27.) Defendants moved for summary judgment. (Doc. # 51.) That motion is ripe. (See Docs. # 52, 55, 57, 58, 59.) Defendants also moved to strike evidence that Tipton submitted in opposition to summary judgment. (Doc. # 60.) That motion is ripe, too. (See Docs. # 62, 64.)

         IV. DISCUSSION

         Everyone agrees that the First Amendment protects Tipton's association with Sewell and her political support for him. (Doc. # 52, at 35; Doc. # 57, at 24.)^[4] It would be hard to argue otherwise. No. evidence suggests that the Accountability Coordinator position has anything to do with politics, nor is there any evidence that Tipton's campaign activities implicated any legitimate interest of the Board's. Thus, the Board could not refuse to hire her because of her First Amendment activities. See, e.g., Rutan v. Repub. Party of Ill., 497 U.S. 62, 78 (1990); Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

         But this case is not about whether Defendants could retaliate against Tipton - it is about whether they did. That is a question about Defendants' knowledge and motives. And based on the cognizable evidence, the only reasonable answer is that Defendants did not violate the First Amendment.

         A. No reasonable jury could find Defendants were subjectively motivated toretaliate against Tipton ...