Bailer v. Jackson County Board of Education

          MEMORANDUM OPINION

          LILES C. BURKE UNITED STATES DISTRICT JUDGE.

         This case is before the Court on the Defendants' motions for summary judgment. (Docs. 51 and 53). The Court will also address the Plaintiff's motion to strike. (Doc. 59). The motions have been fully briefed and are ripe for review. For the reasons that follow, the Court finds that the Defendants' motions for summary judgment are due to be granted. Further, the Plaintiff's motion to strike is due to be denied as moot.

         I. Background and Undisputed Facts

         The Plaintiff, Douglas L. Bailer, sued his former employer, the Jackson County Board of Education (“the Board”), as well as Bart Reeves, the former Superintendent of the Jackson County School System, and Tina Hancock, the former Chief School Financial Officer (“CSFO”) of the Jackson County School System.^[1] In Count I of his complaint, Bailer alleged, pursuant to 42 U.S.C. § 1983, that he was constructively terminated from his job in retaliation for engaging political speech that is protected by the First Amendment to the United States Constitution. In Count IV of his complaint, Bailer alleged, pursuant to 42 U.S.C. § 1983, that Reeves and Hancock conspired to deprive him of his Constitutional rights, including his First Amendment right to free speech. In Counts II and III of his complaint, Bailer alleged that he was discriminated against on the basis of his age and gender. However, he voluntarily dismissed those counts on August 14, 2018. (Doc. 45).

         Bailer was employed by the Board from 1990 until February 1, 2016, both as a teacher and, since 2009, the Information and Technology Specialist in the school system's central office. Hancock also worked in the central office in her position as the CSFO. Reeves was appointed Superintendent by the Board after the previous Superintendent, Ken Harding, resigned in 2015. Pursuant to Alabama law, Reeves was to serve the remainder of Harding's term, which ended in December of 2016. After that term ended, Reeves was required to win an election in order to serve another term as Superintendent. Reeves lost that election to Kevin Dukes.

         On or about December 2, 2015, Hancock reported to Reeves that Bailer had inappropriately touched her on several occasions beginning in 2013. Specifically, Hancock told Reeves that Bailer touched her breast and her “bottom.” Hancock also submitted to Reeves a written allegation as well as a timeline containing dates and descriptions of incidents in which Bailer allegedly touched her. (Doc. 49-1, p. 89-92). As will be discussed below, Bailer denies these allegations and claims that Hancock and Reeves fabricated the charges in order to punish Bailer for supporting Reeves's political rival, Kevin Dukes. However, it is undisputed that Hancock did in fact make the allegations.

         On December 9, 2015, Bailer was summoned to a meeting in Reeves's office where he met with Reeves and John Porter, the attorney for the Board. Bailer secretly recorded the meeting.^[2] The transcript of the recording reveals that Reeves informed Bailer of the allegations against him and placed him on paid administrative leave effective immediately. However, Reeves and Porter stated that the identity of the complaining employee was confidential at that point in time. Reeves and Porter then explained to Bailer that a formal investigation would ensue in which two individuals, a male and a female, would be appointed to investigate the allegations. If the investigation suggested that the allegations were true, Reeves could recommend to the Board that Bailer be terminated. The ultimate decision would then be made by a vote of the Board.

         Reeves and Porter also informed Bailer that the complaining employee would agree to resolve the case informally, i.e., without conducting a formal investigation, provided that Bailer relocate his office to a different building and resign at the end of the school year. Reeves then told Bailer that the complainant and her husband would not pursue criminal charges against Bailer if he agreed to the informal resolution^[3]. Reeves stated that Bailer had until the close of business the following day to make his decision.

         Bailer vehemently denied the allegations and insisted that he had never sexually harassed anyone. Bailer has maintained that position throughout these proceedings. In his complaint, Bailer alleged that Hancock made up the allegations and then conspired with Reeves to have Bailer terminated. According to Bailer's complaint, Reeves wanted Bailer to be terminated because, he says, Bailer supported Reeves's opponent in the 2016 election for Superintendent. Bailer claimed that Reeves and Hancock conspired with each other to manufacture the allegations so that Reeves would have a valid reason to recommend to the Board that Bailer be terminated. This, Bailer said, was in retaliation for Bailer supporting Kevin Dukes's campaign for Superintendent.

         Bailer subsequently hired an attorney who communicated with Reeves and Porter on Bailer's behalf. On January 5, 2016, Bailer entered into an agreement with Reeves reflecting that allegations of misconduct had been made against Bailer and that, although Bailer denied the allegations, Bailer would submit the paperwork to retire from the school system effective February 1, 2016. (Doc. 49-1, p. 133). The agreement noted that only a “limited investigation” had been conducted with no conclusions or findings having been made. Therefore, the agreement provided that no documentation or reference to the allegations would be placed in Bailer's personnel file; that a neutral employment reference would be given to any future prospective employers; that Bailer would not seek reemployment with the Board; and that the agreement was “intended to resolve all current issues existing between Dr. Bailer and the Jackson County Board of Education.” (Doc. 49-1, p. 134). Bailer followed through and ultimately retired from the school board on February 1, 2016.

         The remainder of the voluminous record contains testimony regarding disputed facts surrounding the political environment that existed within the central office between the time that Reeves was appointed in 2015 until he lost his reelection bid to Kevin Dukes in 2016. There are numerous of pages of deposition testimony and affidavits in which various witnesses describe their perceptions of the political factions that existed in the office and in the community as a whole. Some witnesses describe the environment in the central office as politically charged, with one faction supporting Reeves and another supporting Dukes. Those witnesses claimed that Reeves knew who various employees supported in the election, and that he had a list of political enemies in the office that he wished to have terminated. There are disputes as to whether Reeves knew that Bailer supported Dukes; whether Hancock was given more power and authority as CSFO when Reeves became Superintendent; and the extent of Reeves's influence over the Board. However, as will be discussed below, it is not necessary to resolve those disputes in order to decide the issues presented in the Defendants' motions.

         II. Standard of Review

         Under 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(c) requires the non-moving party to go beyond the pleadings and -- by pointing to affidavits, or depositions, answers to interrogatories, and/or admissions on file -- designate specific facts showing that there is a genuine issue for trial. Id. at 324.

         The substantive law will identify which facts are material and which are irrelevant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Anderson”). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. See Allen v. Bd. of Pub. Educ. For Bibb Cty., 495 F.3d 1306, 1314 (11th Cir. 2007); 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.

         When faced with a “properly supported motion for summary judgment, [the non-moving party] must come forward with specific factual evidence, presenting more than mere allegations.” Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997). As Anderson teaches, under Rule 56(c) a plaintiff may not simply rest on her allegations made in the complaint; instead, as the party bearing the burden of proof at trial, she must come forward with at least some evidence to support each element essential to her case at trial. See Anderson, 477 U.S. at 252. “[A] party opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials of [her] pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.'” Id. at 248 (citations omitted).

         Summary judgment is mandated “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. “Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative.” Sawyer v. Sw. Airlines Co., 243 F.Supp.2d 1257, 1262 (D. Kan. 2003) (citing Anderson, 477 U.S. at 250-51).

         “[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249. “Essentially, the inquiry is ‘whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.” Sawyer, 243 F.Supp.2d at 1262 (quoting Anderson, 477 U.S. at 251-52); see also LaRoche v. Denny's, Inc., 62 F.Supp.2d 1366, 1371 (S.D. Fla. 1999) (“The law is clear . . . that suspicion, perception, opinion, and belief cannot be used to defeat a motion for summary judgment.”).

         III. The Defendants' Argument

         All of the defendants claim that they are entitled to summary judgment as to Bailer's retaliation claim. The Board is not named as a party to the civil conspiracy claim. Therefore, only Reeves and Hancock seek summary judgment on that count. The Court will address each claim in turn.

         A. Bailer's ...