United States District Court, N.D. Alabama, Northeastern Division
DOUGLAS L. BAILER, Plaintiff,
v.
JACKSON COUNTY BOARD OF EDUCATION, et al., Defendants.
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 ...