WILLIAM H. STEELE, Chief District Judge.
This matter comes before the Court on defendant's Motion for Summary Judgment (doc. 36). The Motion has been extensively briefed and is now ripe for disposition.
On the afternoon of January 28, 2013, a small school bus picked up a handful of special-needs children after school in Baldwin County, Alabama to transport them home for the day. Such a routine, workaday occurrence is repeated hundreds of times per year at each of thousands of schools across the country. But January 28 was different. The events on that bus, which were captured on videotape, resulted in Penny L. Bailey losing her job with the Baldwin County Board of Education (the "Board"), and ultimately prompted this age discrimination lawsuit.
The basic facts are not in dispute. Bailey was employed by the Board as a Licensed Practical Nurse ("LPN") from 2006 until June 13, 2013. (Bailey Aff. (doc. 48-1), ¶ 2.) At the time of the incident and personnel decision in question, Bailey was 60 years old.
A video/audio recording from a stationary camera mounted inside the bus depicts certain events that occurred during the ride home on the afternoon of January 28, 2013. (See doc. 37, Exh. C.)
One particular student (a boy dubbed "Student 2" in the summary judgment briefs) bears particular significance in this case. Student 2, who is tethered to his seat via a restraining harness in the second row on the right side of the bus, acts out during the video. He strains at his harness, stands up, moves erratically, and frequently looks back at Jordan and Bailey while making indistinct noises.
Neither Jordan nor Bailey checks Student 2 for injuries. For his part, Student 2 does not cry or exhibit obvious signs of distress; to the contrary, his conduct appears much the same as it had been prior to the incident, although he continues to rub/slap his own jaw for some time.
After the fact, none of the adults on the bus (Bailey, Jordan, Johnson) reported the incident to appropriate Board officials. (Doc. 37, Exh. A-2, at 29; Ferrell Dep., at 15.) However, the parents of Student 2 called the Board's Transportation Supervisor, Preston Ferrell, to report that when their child got off the bus that day, he had marks on his face from where he had been struck. (Ferrell Dep., at 13-14.) Ferrell pulled the video and watched it with his supervisor, Michael Vivar, the Board's Transportation Coordinator. (Id. at 16.) Both were "kind of dumbfounded" by what they saw. (Id.) The Board conducted an investigation.
During the relevant time period, Alan T. Lee, Ph.D., was the Superintendent of the Baldwin County Board of Education. (Lee Aff., ¶ 2.) After reviewing both the videotape and the Board's investigative findings, Dr. Lee made a recommendation that the Board terminate Bailey's employment. (Id., ¶ 4.) On March 5, 2013, Dr. Lee sent a letter to Bailey explaining that he was recommending her discharge "on the grounds of neglect of duty, failure to perform your duties in a satisfactory manner, and other good and just cause." (Doc. 37, Exh. A-1.) The March 5 letter identified as "facts supporting the proposed termination" the January 28 incident, which Dr. Lee characterized as one in which Bailey "failed to properly supervise students while on [her] afternoon bus route." (Id.) The March 5 letter proceeded to enumerate these purported failings as follows: "a) You failed to properly respond to a student on your bus who issued a verbal threat to hit another student. b) You knowingly turned your head, at the request of the student making the threat, while another student was hit in the face. c) After learning that a child had been hit by another student, you failed to assess whether or not he was injured or needed medical attention. d) After learning that a child had been hit by another student, you failed to report the incident to administration." (Id.)
Bailey exercised her right to a hearing before the Board to challenge Dr. Lee's recommendation. (Lee Aff., ¶ 5.) A public hearing was held on June 13, 2013, before the Board, with both sides being represented by counsel and having an opportunity to make statements and arguments, examine witnesses and introduce exhibits. At the outset of the hearing, Dr. Lee's counsel succinctly laid out the case for termination in the following terms:
(Doc. 37, Exh. A-2, at 12-13.) In his hearing testimony, Dr. Lee explained the reasoning for his termination recommendation and his observations from review of the bus video in the following terms:
(Id. at 24-25.)
A contested issue during the June 13 hearing was the differential treatment of Bailey (whose termination Dr. Lee had recommended) and the much younger bus driver, Johnson (who was disciplined for the incident, but faced neither suspension nor termination). Dr. Lee testified that, while "the bus driver is in charge of the bus," he "would not expect the bus driver to be observing the children" in the circumstances presented here. (Id. at 31-32.) As Dr. Lee put it, "My intent would be to have the driver focus entirely on driving, as they should be able to assume that two adults would be able to manage the behavior of five children." (Id. at 32.)
Bailey testified in her own behalf at the Board hearing. She denied having heard Student 1 threaten to hit Student 2, denied having seen Student 1 gesture for Bailey and Jordan to turn around, and explained that she had turned her head at the precise moment of Student 1's directive because her assigned student had "made noises" and Bailey needed to make sure she was not having a seizure. (Doc. 37, Exh. A-2, at 87-89.) As for the allegation that she had intentionally turned her head to allow Student 1 to punch Student 2 in the face, Bailey testified, "No. I mean, it may look like that, but that's not what happened. I swear. I would not do that.... That does look like that, but that's not what happened." (Id. at 108.)
At the conclusion of the hearing, the Board voted by a margin of four to two to uphold Superintendent Lee's recommendation and terminate Bailey's employment. (Id. at 117-18.) The position was subsequently filled by a 54-year old female named Deborah Watson. (Doc. 37, Exh. F, at 2.) Bailey then filed suit against the Board, alleging a single cause of action for violation of the Age Discrimination in Employment Act. In particular, Bailey alleged in her pleading that "Defendant's decision to terminate Plaintiff constitutes an intent to discriminate on the basis of her age." (Doc. 1, ¶ 35.) A key allegation buttressing Bailey's ADEA claim in her pleading was that "Karen Johnson, a substantially younger bus driver, was accused of similar allegations resulting from the same incident. Johnson was not terminated and/or suspended for her alleged participation in the alleged inappropriate conduct." (Id., ¶ 26.)
Summary judgment should be granted only "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Rule 56(a), Fed.R.Civ.P. The party seeking summary judgment bears "the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11
The Eleventh Circuit has expressly rejected the notion that summary judgment should seldom be used in employment discrimination cases because they involve issues of motivation and intent. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079 (11
As noted, Bailey's lone cause of action asserts that the Board's decision to fire her violated the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. ("ADEA"). "The ADEA prohibits employers from discharging an employee who is at least 40 years of age because of that employee's age." Sims v. MVM, Inc., 704 F.3d 1327, 1331 (11
Where, as here, the plaintiff relies on circumstantial evidence to satisfy her burden of persuasion, the Eleventh Circuit has "continued to evaluate ADEA claims based on circumstantial evidence under the McDonnell Douglas framework." Sims, 704 F.3d at 1332; see also Kragor v. Takeda Pharmaceuticals America, Inc., 702 F.3d 1304, 1308 (11
"Next, the defendant must articulate a legitimate, non-discriminatory reason for the challenged employment action." Sims, 704 F.3d at 1332; see also Liebman, 2015 WL 9259224, at *3 ("Once an employee has established a prima facie case, the burden shifts to the employer to rebut the presumption of discrimination with evidence of a legitimate, nondiscriminatory reason for the adverse employment action.") (citation and internal quotation marks omitted). "If the defendant articulates one or more such reasons, the plaintiff is afforded an opportunity to show that the employer's stated reason is a pretext for discrimination." Sims, 704 F.3d at 1332; see also Liebman, 2015 WL 9259224, at *3 ("If the employer proffers a legitimate, nondiscriminatory reason, the burden shifts back to the employee to show that the employer's reason is a pretext."). As noted supra, Gross confirms that an ADEA plaintiff at all times bears the burden of persuasion to show that age was the "but-for" cause of the challenged personnel action.
The summary judgment analysis in this case, as in so many employment discrimination actions, turns on the question of pretext. To be sure, the parties spar in their briefs over whether Bailey has or has not established a prima facie case of age discrimination. This Court concludes that she has done so.
In order to withstand the Motion for Summary Judgment, then, Bailey must establish pretext. "The plaintiff can show pretext either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Kragor, 702 F.3d at 1308 (citation and internal quotation marks omitted). Where, as here, the plaintiff utilizes the latter approach, "[t]he district court must evaluate whether the plaintiff has demonstrated such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence." Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11
The centerpiece of plaintiff's pretext argument concerns the Board's differential treatment of the 60-year old Bailey (who was fired) and the 33-year old Johnson (who was reprimanded and removed from the bus, but not fired). According to plaintiff, the Board's "inconsistent approach between Bailey and Johnson fails to follow a logical discipline thread. The disparity between the two suggests the discipline against Bailey is nothing more than a sham." (Doc. 45, at 10.) The trouble with plaintiff's assertion is that it ignores the Board's clear, consistent, and logical explanation for why Bailey and Johnson were disciplined differently. This explanation has three prongs. First, the Board viewed Bailey and Johnson as having "fundamentally different" responsibilities on the bus. While Johnson's primary duty was to operate the bus safely, Bailey was a passive rider charged with monitoring the medical needs of her assigned student. (Lee Aff., ¶ 7.) Thus, Bailey had a much greater capacity to observe and prevent student-on-student fisticuffs because, unlike Johnson, she was unencumbered by responsibilities of operating a large motor vehicle in potentially heavy/dangerous traffic conditions. Second, the Board deemed the video to be compelling evidence of glaring misconduct by Bailey (and Jordan, for that matter). By contrast, Johnson was neither visible nor audible in the video at the crucial juncture, such that no comparably severe misconduct on her part was recorded therein. Thus, the Board deemed the video evidence against Bailey far stronger than that against Johnson. (Id.) Third, the Board placed particular weight on its conclusion (from viewing the video) that Bailey had intentionally turned her head, giving Student 1 tacit permission and carte blanche to assault Student 2 with no adult involvement; however, the Board had absolutely no indication that Johnson had knowingly averted her gaze while one student on her bus attacked another. (Id.)
For purposes of an ADEA pretext analysis, the question is not whether the Court would have disciplined Bailey and Johnson the same way, nor is it whether the Court agrees with the Board's decision. See, e.g., Chapman v. AI Transport, 229 F.3d 1012, 1030 (11
Plaintiff goes on to advance numerous other theories of pretext. For starters, plaintiff posits that the Board has been inconsistent in sometimes ascribing Bailey's work performance history as a reason for the termination decision, but other times denying it. (Doc. 45, at 12.) If it existed, such an inconsistency might give rise to an inference of pretext. However, plaintiff cites no evidence that the Board decision makers ever wavered or equivocated on the reasons for Bailey's dismissal. Dr. Lee's termination letter references the January 28 incident, and the January 28 incident alone, as the reason for his termination recommendation, with no mention of other performance issues. (Doc. 46, Exh. 18.) In discovery in this litigation, plaintiff propounded as Interrogatory #2 the following: "Please describe in detail reasons for Plaintiff's termination." Defendant's complete response was, "See notice of proposed termination located within Plaintiff's personnel file," which again was confined to the January 28 incident. (See Doc. 46, Exh. 3, at 3.) In his affidavit in this case, Dr. Lee identified as the sole reasons for his termination recommendation facts and conclusions relating to the January 28 incident. (See Lee Aff., ¶ 4.) Plaintiff does not point to a single exhibit, deposition or hearing transcript in which Dr. Lee or the Board ever stated that Bailey was fired because of a history of performance issues. As defendant succinctly puts it in its reply brief, "At no time has the Board shifted or changed its rationale as to why it terminated Plaintiff — her termination was recommended because of what is depicted in the video." (Doc. 49, at 9.) This pretext argument is unfounded.
Next, plaintiff criticizes what she calls "Defendant's attempt to use after-acquired evidence" to justify its termination decision. (Doc. 45, at 14.) On this point, plaintiff relies on both evidence of Bailey's past performance and evidence about the relative dangerousness of the bus route, neither of which Dr. Lee had in hand when he made his recommendation. This argument fails to demonstrate pretext because (i) the Board has never cited past performance evidence as the basis for its decision to terminate Bailey's employment; and (ii) while Dr. Lee mentioned the bus route during the termination hearing, he did so only in passing and only after making the more general, common-sense point that (regardless of route) the bus driver's primary responsibility is to drive the bus safely, not to watch the children's every move.
Plaintiff also seeks to make a showing of pretext by disputing defendant's assessment that "the video did not show the bus driver and her culpability was unclear." (Lee Aff., ¶ 7.) According to plaintiff, this is pretextual because the video demonstrates that "Student 1 specifically inquired of Johnson about whether or not he could hit student 2." (Doc. 45, at 15.) To be sure, the video reflects that Student 1 is sitting at the front of the bus, apparently near Johnson, and that they sometimes converse, although much of their dialogue is garbled. The video also reflects Student 1 asking, "I can do it? I can do it for real?" in the seconds before he gets out of his seat and punches Student 2 in the face. Plaintiff interprets this segment as meaning that Student 1 asked Johnson for permission to hit Student 2, rendering Johnson's culpability at least as great as Bailey's. Unfortunately for plaintiff, the video does not reveal any response by Johnson to these questions. Where is the evidence that Johnson heard (much less gave explicit or tacit approval for Student 1 to follow through on) his threat? Plaintiff cites none, and the Board's conclusion that there was none is reasonable under the circumstances.
Plaintiff's remaining four pretext arguments may be quickly dispatched. First, plaintiff identifies purported inconsistencies or inadequacies in the testimony of Bailey's supervisor, Linda Jones, regarding Bailey's past performance and disciplinary history. (Doc. 45, at 17-20.) As previously discussed, however, the Board never proffered Bailey's work history as an independent reason for her discharge; therefore, whether Jones described that history accurately or consistently is inconsequential to the task at hand. Second, plaintiff says it was pretextual for the Board to cite Bailey's failure to perform a medical assessment of Student 2 after he was punched as a reason for termination. Third, plaintiff says it was pretextual for the Board to cite Bailey's failure to report the incident as a reason for termination. These arguments amount to mere quarreling with the wisdom of the Board's determinations that she should have medically assessed Student 2 and reported the incident, which is improper. See Alvarez, 610 F.3d at 1266 ("The question to be resolved is not the wisdom or accuracy of Heidi's conclusion that Alvarez's performance was unsatisfactory, or whether the decision to fire her was `prudent or fair.'"). More fundamentally, such arguments do not bolster plaintiff's cause on summary judgment because "[w]here the defendant articulates multiple, reasonable, legitimate and nondiscriminatory reasons, plaintiff must rebut each of defendant's proffered reasons." Ennis v. Tyson Foods, Inc., 12 F.Supp.3d 1364, 1377 (N.D. Ala. 2014) (citing Chapman, 229 F.3d at 1024-25). Plaintiff has not rebutted the Board's proffered reasons that she was fired for failing to respond properly to Student 1's threat and (especially) for intentionally turning away while Student 1 punched Student 2; therefore, establishing pretext in the Board's other proffered explanations would not alter the summary judgment analysis. Fourth, plaintiff suggests that pretext may be inferred from the Board's position that Johnson was not fired because Dr. Lee "did not receive a recommendation to terminate Johnson" (Doc. 45, at 21-22), even though Bailey was fired despite Dr. Lee likewise receiving no termination recommendation from her supervisors. This assertion distorts and misstates defendant's position, and therefore cannot be credited.
For all of the foregoing reasons, the Court finds that Bailey has failed, as a matter of law, to meet her burden of demonstrating such weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in the Board's stated legitimate nondiscriminatory reasons for terminating her employment that a reasonable factfinder could deem them unworthy of credence. Without an adequate showing of pretext, Bailey's age discrimination claims against the Board cannot survive. The Board possessed powerful video evidence that Bailey knowingly, intentionally turned her head while a special-needs student on her bus sitting just a few feet away from her was punched in the face by another student. While Bailey protests that the video is not what it seems to be, it was not unreasonable for the Board to find that such compelling video evidence warranted the termination of Bailey's employment as depicting her complicity in a student assault. Moreover, Bailey's attempt to build an ADEA cause of action because the substantially younger bus driver was not fired falls short because the Board reasonably determined that (i) the bus driver's role on the bus differed from Bailey's, (ii) the video evidence was nowhere near as strong against the bus driver, and (iii) Bailey intentionally allowed a special-needs student tethered to his seat to be attacked by another student, whereas the bus driver did not engage in comparable misconduct.
Plaintiff may disagree with the Board's conclusions. Those conclusions may be unfair or flat-out wrong. It may all have been, as Bailey says, an unfortunate coincidence that she turned her head at the precise moment when Student 1 signaled and directed her to do so before striking Student 2. In the words of Buffy the Vampire Slayer, however, "there are two things I don't believe in: coincidences and leprechauns." The ADEA does not obligate employers to believe in coincidences, either. The Board's rejection of Bailey's "coincidence" explanation for her misconduct captured on video cannot support a reasonable inference that Bailey's age was the but-for cause of the Board's decision to fire her, particularly where the video displayed no comparable misconduct by the would-be comparator. Accordingly, defendant's Motion for Summary Judgment (doc. 36) is
DONE and ORDERED.
Elsewhere in her brief, plaintiff improperly quarrels with the wisdom of the Board's decision to discipline Bailey and Johnson differently. Plaintiff says Bailey had "no assigned supervisory responsibilities over any child in the bus excluding her assigned charge." (Doc. 45, at 7.) Even accepting that statement as true, such a lack of "assigned supervisory responsibilities" would not excuse Bailey's act of intentionally looking away (effectively making her complicit in Student 1's assault of Student 2) or absolve her from any duty to look after the safety and welfare of school children on the bus. Plaintiff balks that Johnson had "assigned and direct responsibilities to supervise children assigned on her bus" (id. at 8), but there is no evidence that Johnson knowingly looked away as Bailey did to facilitate student-on-student violence. Nor does plaintiff rebut the Board's evidence that Johnson's primary responsibility was to operate the bus safely, or that the video depicts Bailey's conduct at the crucial moment without showing anything about what Johnson was doing (other than driving the bus) at that moment. Plaintiff balks that Johnson's "participation and knowledge of the threat was confirmed by Jordan" (doc. 45, at 8-9, 15-16); however, the record citation given repeatedly by plaintiff for this proposition is a page of notes reflecting that Jordan said, "No, I didn't hear that" when asked if Student 1 had asked the bus driver for permission to hit Student 2. (Doc. 46, Exh. 23, at 1480.) The notetaker, Jennifer Sinclair, testified in her deposition on this very point as follows: "Q: [Jordan] says no, I did not hear [Student 1] ask driver? A: Right." (Sinclair Dep., at 120-21.) Thus, plaintiff's cited evidence emphatically does not support the proposition for which she cites it (namely, Johnson's awareness of impending violence on her bus). Plaintiff has simply not made a sufficient showing that the Board's stated reasons for firing Bailey were pretext, and that the real reasons for that decision were ageism, based on disparities in the discipline meted out to Bailey and Johnson. Again, the Board has extensively explained its reasons for those differences in treatment, and plaintiff has not met her burden of showing that a reasonable fact finder could deem these explanations to be a lie, an elaborate cover-up to mask illegal age-based animus.