United States District Court, M.D. Alabama, Southern Division
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 ...