Gaddis v. Alabama Institute For The Deaf And Blind

          MEMORANDUM OPINION^[1]

          STACI G. CORNELIUS U.S. MAGISTRATE JUDGE.

         This matter is before the court on the motions for summary judgment filed by Defendants, Alabama Institute for the Deaf and Blind (“AIDB”), John Mascia, and Christy Atkinson. (Docs. 44, 46). These motions are fully briefed and ripe for adjudication. (Docs. 45, 47-52, 54F-55). Also pending is Mascia and Atkinson's motion to strike certain evidence on which Plaintiff, Stephanie Gaddis, relies; Plaintiff has not responded to this motion. (Doc. 53). As explained below, the motion to strike is due to be granted in part, and the motions for summary judgement are due to be granted in their entirety.

         I. PROCEDURAL HISTORY

         The operative complaint is the third amended complaint. (Doc. 37). Plaintiff asserts three claims against Defendants. Count I alleges disparate treatment under Title VII and 42 U.S.C. § 1983. (Id. at 13-15). Count II alleges retaliation and also invokes Title VII and § 1983. (Id. at 15-18). Count III is entitled “Retaliation and Hostile Work Environment.” (Id. at 18-21).

         All claims are asserted against AIDB, as well as Mascia and Atkinson in their individual and official capacities. Accordingly, one group of attorneys represents AIDB and Mascia in his official capacity. (See Doc. 46). Separate counsel represents Mascia and Atkinson with regard to the remaining claims. (See Doc. 44).^[2] Plaintiff responded separately to each motion for summary judgment (Docs. 48, 49) but also filed amended responses (Docs. 50, 51). The amended responses attach fewer exhibits, but the substance of the briefs appear to be the same, save the amended response to Mascia and Atkinson's motion; Plaintiff's amended response omits the final page of her brief. (Compare Doc. 48 with Doc. 50). In any event, the undersigned assumes Plaintiff intended the amended responses to supplant her original responses, and this opinion analyzes the arguments and evidence presented in Plaintiff's amended responses.

         II. STANDARD OF REVIEW

         Under Rule 56(c) of the Federal Rules of Civil Procedure, 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.

         The 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.

         III. FACTS

         AIDB is the official state agency designated to conduct educational and training programs for deaf, hearing impaired, blind, and visually handicapped Alabamians. Ala. Code § 21-1-23; see Tuck v. Alabama Inst. for Deaf & Blind, No. 17-0394-ACA, 2019 WL 398702, at *1 (N.D. Ala. Jan. 31, 2019). AIDB runs the Helen Keller School (“HKS”), which teaches deaf, blind, and multi-handicapped students. (See Doc. 47 at 2). AIDB has employed Plaintiff, an African American female, as a teacher for over thirty years. (Doc. 51 at 2; Doc. 37 at 5). For almost all of that time, Plaintiff taught at HKS, where she continues to teach. (Doc. 51 at 2; Doc. 43-1 at 4).

         Mascia has been employed by AIDB since January 2005, and has served as AIDB's President since January 2013. (Doc. 43-3 at 2). Prior to becoming President, Mascia had no supervisory authority over Plaintiff and was not involved in any decisions affecting her employment. (Id.). As President of AIDB, Mascia does not have authority to hire, suspend without pay, or terminate any employee. (Id. at 3). Rather, under Alabama law, Mascia's authority is limited to making recommendations to AIDB's Board of Trustees; the Board of Trustees is not bound by those recommendations. (Id.). Atkinson was employed by AIDB from July 1, 2011, through August 26, 2015; during this time she served as the Principal of HKS. (Doc. 43-4 at 2). As Principal, Atkinson did not have authority to hire, transfer, promote, or suspend any employee. (Id.). Instead, Atkinson's authority was limited to making recommendations on these matters. (Id. at 2-3).

         On August 19, 2014, Plaintiff was teaching a class in which K.C. was a student. K.C., a white, visually impaired student who suffers from multiple disabilities, was rude and disruptive, and Plaintiff eventually sent her to stand outside the classroom. (See Doc. 51 at 8-9; Doc. 47 at 3). When K.C. subsequently disobeyed Plaintiff's instruction to return to the classroom, Plaintiff walked to K.C. and began escorting her toward the classroom. (Doc. 51 at 8-9; Doc. 47 at 3). Plaintiff testified that as she and K.C. were walking side-by-side, K.C. fell to the ground and began to throw a temper tantrum. (Doc. 43-1 at 11). Plaintiff had her arm around K.C. before she fell; Plaintiff testified she tried to catch K.C. to help her back to her feet. (Id. at 11-12). When K.C. refused to cooperate, Plaintiff testified she left her alone. (Id. at 12). For purposes of summary judgment, this is how the events with K.C. unfolded.

         This interaction was witnessed by at least five other AIDB employees. One teacher, Brenda Lee, stated she saw K.C. fall but did not see Plaintiff pull her across the floor. (Doc. 43-2 at 37). The rest of the witnesses had different impressions. One teacher, Carolyn Stamps, saw Plaintiff escorting K.C. to the classroom and witnessed K.C. fall to the floor; Stamps could not say whether K.C. fell or was pushed to the ground. (Doc. 43-3 at 25). Stamps stated Plaintiff pulled K.C. toward the classroom but did not observe the entire interaction because her view of the area was obstructed. (Id.; Doc. 43-2 at 35). Katie Trotter, a job coach, observed K.C. sit down on the floor as Plaintiff was escorting her. (Doc. 43-3 at 22). Trotter stated Plaintiff pulled K.C. by her arm back to the classroom, with K.C. “sliding on her bottom across the floor.” (Id.). Trotter estimated Plaintiff dragged K.C. across the floor for approximately twenty or thirty feet. (Doc. 43-2 at 32-33). Another teacher, Christine Smith, opined K.C. lost her balance and fell; after the fall, Smith saw Plaintiff pull K.C. back to the classroom by the arm, dragging her across the floor for a distance between twelve and twenty feet. (Id. at 28-31; Doc. 43-3 at 24). Holly Hartsfield, a teacher's aide, also stated Plaintiff pulled K.C. across the floor for approximately five to seven feet and into the classroom; Hartsfield heard a loud bang after Plaintiff and K.C. were back in the classroom. (Doc. 43-3 at 23; see Doc. 43-2 at 21).

         Later that day, Hartsfield spoke with K.C. and observed a red mark on her arm near the elbow. (Doc. 43-3 at 23). K.C. told Hartsfield that Plaintiff had kicked her in the head during the incident. (See id.; see also Doc. 43-1 at 21; Doc. 43-2 at 17). Hartsfield then took K.C. to the nurse's station and was directed to make a report to the Alabama Department of Human Resources (“DHR”). (Doc. 47 at 4). Multiple agencies responded, and Plaintiff was placed on administrative leave the following day pending an investigation. (Id.; Doc. 51 at 11; see Doc. 43-3 at 10). During the investigation, Plaintiff refused to meet with AIDB personnel without her attorney. (Doc. 47 at 5-6; Doc. 51 at 12). Throughout the investigation, Plaintiff denied dragging K.C. across the floor.

         AIDB policies prohibit corporal punishment, which is defined as physically punishing a student “by shaking, slapping, grabbing body parts with excessive force, etc.” (Doc. 43-1 at 93-94). On October 24, 2014, Mascia wrote Plaintiff a letter memorializing the conclusions of AIDB's investigation. (Doc. 43-3 at 12-13). The letter acknowledged Plaintiff denied pulling K.C. across the floor but concluded her version of events was outweighed by the four witness statements to the contrary. (Id. at 12). As a result, Mascia recommended Plaintiff be suspended without pay for ten days. (Id. at 13). Plaintiff rejected Mascia's proposed discipline and requested an evidentiary hearing with AIDB's Board of Trustees. (Doc. 43-6 at 3; see Doc. 43-1 at 92).

         The hearing board was comprised of four members of the Executive Committee of AIDB's Board of Trustees (the “Hearing Board”). The Hearing Board conducted an evidentiary hearing on November 7, 2014. (Doc. 43-2).^[3]Plaintiff was represented by counsel at the hearing, presented evidence, and testified she never pulled K.C. across the floor. (Id.; see Doc. 47 at 7). Plaintiff also called Brenda Lee, who testified she witnessed K.C. fall but did not see Plaintiff pull her across the floor. (Doc. 43-2 at 37). The Hearing Board also heard the other witnesses-Stamps, Smith, Trotter, and Hartsfield-testify they saw Plaintiff pull K.C. across the floor after she fell. (Id. at 20-36). The Hearing Board unanimously voted to approve Mascia's recommended discipline of a ten-day suspension without pay. (See Doc. 43-1 at 77). Mascia informed Plaintiff of the Hearing Board's decision later on November 7, 2014. (Id.). Plaintiff returned to work at HKS on December 1, 2014. On January 6, 2015, Plaintiff filed an EEOC charge, alleging her suspension without pay was racially motivated and retaliatory. (Doc. 43-7).

         Plaintiff contends her suspension was racially discriminatory because white AIDB employees were accused of misconduct but received lesser discipline. (Doc. 51 at 14). Susan McCrary was a white female teacher at HKS who in 2011 was involved in a physical altercation with an African American student in which she pulled the student's hair. (Id.; see Doc. 43-3 at 5).^[4] As a result of this incident, McCrary was arrested and tried for third-degree assault. (Doc. 51 at 14). However, McCrary was not suspended without pay. (Id. at 14-15). AIDB's investigation revealed the student attacked and attempted to bite McCrary and that McCrary's actions were taken in self-defense. (Doc. 43-3 at 5-6; Doc. 43-4 at 4- 5). The student's parents filed the criminal charges, but McCrary was acquitted after a trial in Talladega Municipal Court. (Doc. 43-3 at 6; Doc. 43-4 at 5). AIDB placed McCrary on paid administrative leave while it conducted the investigation and during the pendency of the criminal charges. (Doc. 43-4 at 4-5). Under the circumstances of that case, AIDB determined McCrary had not violated any of its policies, and she returned to work after her acquittal. (See Id. at 5).

         Hope Marshall, another white teacher at HKS, was accused by a teacher's aide of “abusing” three students in 2013. (Doc. 51 at 16-18; see Doc. 43-4 at 6). AIDB placed Marshall on paid administrative leave and reported the allegations to DHR and law enforcement. (Doc. 43-4 at 6). Law enforcement conducted an investigation and found no evidence to support the accusation. (Id.). Marshall returned to work without discipline after AIDB concluded she had not violated any applicable policies. (Id.).

         In 2017, Hope Marshall was again accused of improper treatment of students. (Doc. 47 at 11).^[5] AIDB placed Marshall on administrative leave and conducted an investigation, which revealed she applied ankle weights to two students during nap time to control their leg movements. (Doc. 43-3 at 6). Because this violated AIDB's restraint policy, Mascia recommended Marshall be suspended for ten days without pay. (Doc. 55-1 at 2). Marshall rejected Mascia's proposed discipline and requested a hearing before the Hearing Board. (Id.). Prior to the hearing, Marshall negotiated a resolution, agreeing to a two-day suspension without pay. (Id. at 3).

         Plaintiff also contends she experienced retaliation for filing the January 6, 2015 EEOC charge. (Doc. 51 at 19). These allegations concern Defendants' response to Plaintiff's complaints concerning a disruptive student, the lack of a classroom paraprofessional, failure to purchase a book Plaintiff requested, and Atkinson's response when Plaintiff held a birthday party for a student. (Id. at 19-22). Each circumstance is described in turn.

         After she filed the EEOC complaint, Plaintiff began experiencing problems with a disruptive student, Z.L. (Doc. 51 at 19-21; see Doc. 47 at 11-12). Z.L. directed racial epithets and insults at Plaintiff and other students and threatened to harm and/or kill Plaintiff, other students, HKS staff, Atkinson, and Mascia. (Doc. 51 at 19-21). Plaintiff testified Z.L had been in her class for two or three years. (Doc. 43-1 at 43). Plaintiff reported Z.L.'s behavior to Atkinson and repeatedly requested assistance. (Doc. 51 at 19-21). However, Plaintiff contends: (1) Z.L. was not disciplined, expelled, or moved to another class; and (2) Atkinson failed to provide an AIDB behavioral specialist to assist Plaintiff. (Id.).^[6] Compounding this problem was the February 6, 2015 retirement of Plaintiff's paraprofessional aide. (Id.). Plaintiff contends a new paraprofessional aide was not hired until April 2015. (Id.). Plaintiff testified Z.L. was not in her class the following academic year because Atkinson removed him from Plaintiff's roster. (Doc. 43-1 at 43).

         In response, Defendants have submitted unrebutted evidence that Z.L. was an intellectually disabled student who had an I.Q. below 50 and suffered from multiple disabilities, including Tourette's Syndrome. (Doc. 43-4 at 7-8).^[7] Atkinson concluded Z.L.'s behavioral problems and outbursts were attributable to his disabilities. (Id. at 8). Additionally, previous suspensions had not affected Z.L.'s disruptive behavior, AIDB did not have an alternative placement for Z.L., and Z.L.'s mother would not approve of additional recommended behavior interventions. (Id.). Accordingly, Defendants' disciplinary options for Z.L. were limited under the Disabilities Education Act. (Id.). Moreover, Defendants have offered unrebutted evidence that: (1) Wendy Glass, an AIDB Behavior Specialist, was available as a resource to assist Plaintiff with Z.L.'s behavior; and (2) a part-time aide was approved during the absence of a dedicated paraprofessional. (Id. at 9). Plaintiff has not cited any evidence to contest the foregoing averments regarding Wendy Glass or the availability of a part-time aide. (Id.).

         Regarding the paraprofessional, Defendants have submitted unrebutted evidence that the process of hiring a new paraprofessional-posting an available job, verifying credentials, interviewing applicants, and selecting an applicant- took an average of eight to twelve weeks. (Doc. 43-4 at 8). The approximately ten weeks it took to replace Plaintiff's paraprofessional fell within this time frame. Additionally, Plaintiff testified Z.L.'s behavior did not improve even after a new full-time paraprofessional was assigned. (Doc. 43-1 at 47).

         Next, Plaintiff contends she requested Atkinson to purchase a book for her classroom and that Atkinson agreed to do so prior to the incident with K.C. (Doc. 47 at 13). The book cost $165, which would constitute the majority of Plaintiff's yearly classroom supply funds. (Id.). At some point Atkinson refused to purchase the book.^[8] Defendants have offered unrebutted evidence that Atkinson placed purchase orders for copies of the book for Plaintiff and a white teacher who had also requested it. (Doc. 43-4 at 10). After HKS's bookkeeper told Atkinson school funds should not be used for individual teachers due to auditing issues, Atkinson informed Plaintiff and the other teacher she would not purchase copies of the book for their respective classrooms. (Id. at 10-11). Instead, Atkinson told both teachers there were two copies of the book in the HKS library, which they could check out and keep in their classrooms. (Id. at 11).

         Regarding the party, Plaintiff threw a birthday celebration for one of her students on April 2, 2015, inside an HKS academic building. (Doc. 51 at 21). It appears Plaintiff did not get prior permission to have the party. (See id.; Doc. 43-1 at 79). Plaintiff brought two deep fryers she owned to prepare food for the party. (See Doc. 51 at 21; Doc. 47 at 14). After the party, a staff member asked if she could use the deep fryers; Plaintiff agreed. (Doc. 47 at 14). Later that day another staff member found the deep fryers unattended and confiscated them. (Id.). Plaintiff estimates her fryers were not returned for twenty days. (Id.).

         The day after the party, Atkinson sent Plaintiff an email reminding her that supervisor approval was required for parties on school grounds. (Doc. 43-1 at 79). The email also directed Plaintiff to review AIDB guidelines regarding snacks. (Id.). Finally, the email advised Plaintiff she could not throw parties in the future without prior approval. (Id.). On the same day, Atkinson sent an email to other staff members including similar reminders that: (1) parties required pre-approval; (2) using deep fryers in the building was unacceptable because they presented a safety hazard-particularly when left unattended-and emitted odors. (Id. at 78). Plaintiff did not receive any formal discipline as a result of the birthday party but felt the email and detention of her deep fryers were retaliatory. (Doc. 47 at 14). Plaintiff also testified a white teacher threw a May 19, 2015 party without prior approval. (Id. at 15; Doc. 51 at 21-22).^[9] Plaintiff further testified Atkinson did not send any emails regarding the May 19, 2015 party; nor did the white teacher receive any warning or discipline. (Doc. 51 at 22; Doc. 47 at 15). Defendants have submitted unrebutted evidence that Atkinson was unaware of the May 19, 2015 party. (Doc. 43-4 at 9).

         On October 5, 2015, Plaintiff filed a second EEOC charge, again alleging racial discrimination and retaliation. (Doc. 51 at 22; see Doc. 43-8).

         IV. MOTION TO STRIKE

         Counsel for Mascia and Atkinson have filed a motion to strike three exhibits and portions of Plaintiff's responsive brief. (Doc. 53). Plaintiff has not responded to the motion, and the time to do so has expired. (See Doc. 17 at 5). The exhibits subject to the motion to strike are: (1) a letter from K.C.'s mother to Atkinson dated August 19, 2014 (Doc. 50-20); (2) the declaration of Corrie Henderson (Doc. 50-11); and (3) the declaration of Karen Raine (Doc. 50-12). Defendants also move to strike portions of Plaintiff's brief, including: (1) seven paragraphs relying on the foregoing exhibits; (2) one paragraph relying on the foregoing exhibits and Plaintiff's testimony not based on Plaintiff's personal knowledge; and (3) thirty paragraphs which do not cite to any evidence, include hearsay, and/or are not based on personal knowledge. (Doc. 53). As explained below, the motion will be granted in part and denied in part.

         A. Lack of Citation to the Record

         Rule 56(c)(3) provides that a court presented with a motion for summary judgment “need consider only the cited materials, but it may consider other materials in the record.” Likewise, the Initial Order governing this case provides: “Citations to the record must refer to the document number and paragraph or line number, where available. If the parties are unable to cite to a specific paragraph or line number, they shall cite the document number and page number.” (Doc. 17 at 4). While the court will not strike the portions of Plaintiff's brief that purport to provide factual support without citing to any evidence, any unsupported statements cannot create a genuine issue of material fact where Defendants' have presented evidence to the contrary. See White v. Alabama Inst. for Deaf & Blind, No. 16-0190-VEH, 2018 WL 1089879, at *3 (N.D. Ala. Feb. 28, 2018) (“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.”). The factual assertions in the Plaintiff's brief which are not supported by the record do not appear in the facts set out above. The same standard applies to Defendants' briefs.

         B. K.C.'s Mother's Letter to Atkinson

         The unsworn letter from K.C.'s mother to Atkinson is dated August 19, 2014, the day of the incident giving rise to Plaintiff's ten-day suspension without pay. (Doc. 50-20). In the letter, K.C.'s mother expresses her support for, and faith in, Plaintiff as a teacher. K.C.'s mother also expresses her belief that K.C. lied about the incident; although not entirely clear, it appears K.C. may have asserted she fell because Plaintiff pushed her to the ground. (See Id. at 1) (“[K.C.] admitted that she lied about what happened-[Plaintiff] did NOT push her down, she fell after [Plaintiff] grabbed her arm . . . .”). The letter also states that, after K.C. fell to the ground, Plaintiff “took [K.C.] by the arm and dragged her back into the class.” (Id.).

         "[E]vidence inadmissible at trial cannot be used to avoid summary judgment. Even on summary judgment, a court is not obligated to take as true testimony that is not based upon personal knowledge." Corwin v. Walt Disney Co., 475 F.3d 1239, 1249 (11th Cir. 2007) (citations omitted) (affirming grant of summary judgment for defendant and finding no error in district court's striking testimony not based on personal knowledge). Hearsay is a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Fed.R.Evid. 801(c). Hearsay which cannot be reduced to admissible form at trial may not be considered at summary judgment. Macuba v. Deboer, 193 F.3d 1316, 1322-23 (11th Cir. 1999).

         Because K.C.'s mother was not present during the incident, her letter is not based on personal knowledge and constitutes hearsay which cannot be reduced to admissible form. Moreover, even if the letter were admissible, it would not help Plaintiff. To the extent Plaintiff might rely on the letter to show K.C. lied about the incident, the lies the letter describes are limited to K.C.'s apparent earlier assertion Plaintiff pushed her to the ground. Whether Plaintiff pushed K.C. down is not at issue; for purposes of summary judgment, K.C. either lost her balance or simply sat down. Similarly, the Hearing Board did not hear any contention that Plaintiff pushed K.C. down; its decision was based on testimony from four witnesses who stated they saw Plaintiff dragging K.C. across the floor after she fell. Curiously, the letter supports the Hearing Board's conclusion on this point.

         For the foregoing reasons, the motion to strike the letter will be granted because it is inadmissible hearsay. The letter is also irrelevant to the material facts in this case. Accordingly, the court will not consider the letter or the portions of Plaintiff's brief which rely on the letter.

         C. Declaration ...