Opinion
4:21cv320-MW-MAF
02-28-2023
RONALD DAVID JONES, Plaintiff, v. GADSDEN COUNTY SCHOOL BOARD, Defendant.
REPORT AND RECOMMENDATION
MARTIN A. FITZPATRICK UNITED STATES MAGISTRATE JUDGE
Pro se and in forma pauperis plaintiff, Ronald Jones-an African-American former substitute teacher with the Gadsden County School system-is proceeding on a second amended complaint (“Complaint”) in this “failure-to-hire” action brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”) and the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (“ADEA”). ECF No. 11. Pending before the Court are cross-motions for summary judgment by Defendant Gadsden County School Board (“GCSB”) and by Plaintiff. ECF Nos. 41, 44. The parties have responded in opposition, so the motions are ripe for resolution. ECF Nos. 46, 47. After reviewing the parties' submissions, the record, and the relevant law, the undersigned respectfully RECOMMENDS that Defendant's motion is due to be GRANTED and that Plaintiff's motion is due to be DENIED.
I. SUMMARY JUDGMENT STANDARD
To prevail on a motion for summary judgment, the moving party must show that the nonmoving party has no evidence to support his or her case or present affirmative evidence that the nonmoving party will be unable to prove his or her case at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). If the moving party successfully negates an essential element of the nonmoving party's case, then the burden shifts to the nonmoving party to come forward with evidentiary material demonstrating a genuine issue of fact for trial. Id., 477 U.S. at 322-23, 106 S.Ct. at 2552-53. The “mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986) (emphasis in original). A dispute is “genuine” if the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id., 477 U.S. at 248, 106 S.Ct. at 2510 (citation omitted). A fact is “material” if it “might affect the outcome of the suit under the governing law.” Id. The nonmoving party must show more than the existence of a “metaphysical doubt” regarding the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (citations omitted). Speculation or conjecture from a party cannot create a genuine issue of material fact. See Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005). “A mere scintilla of evidence in support of the nonmoving party will not suffice to overcome a motion for summary judgment.” Young v. City of Palm Bay, Fla., 358 F.3d 859, 860 (11th Cir. 2004) (citation omitted); see also Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553. The nonmoving party must either point to evidence in the record or present additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. See Celotex Corp., supra; Owen v. Wille, 117 F.3d 1235, 1236 (11th Cir. 1997) (Rule 56 requires the nonmoving party to go beyond the pleadings and by his or her own affidavits, or by the depositions, documents, affidavits or declarations, admissions, interrogatory answers or other materials on file designate specific facts showing that there is a genuine issue for trial); Hammer v. Slater, 20 F.3d 1137, 1141 (11th Cir. 1994).
Evidence presented by the nonmoving party in opposition to the motion for summary judgment, and all reasonable factual inferences arising from it, must be viewed in the light most favorable to him or her. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Nonetheless, the nonmoving party still bears the burden of coming forward with sufficient evidence of every element that he or she must prove. See Celotex Corp., 477 U.S. at 324-25, 106 S.Ct. at 2553-54. A motion for summary judgment should be granted 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.” Fed.R.Civ.P. 56(a); Celotex Corp., 477 U.S. at 322, 106 S.Ct. at 2552.
As a general rule, Pro se filings are “to be liberally construed.” Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976). While Pro se pleadings are liberally construed, “a Pro se litigant does not escape the essential burden under summary judgment standards of establishing that there is a genuine issue as to a fact material to his case in order to avert summary judgment.” Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990) (citations omitted). Thus, “[a]lthough [the courts] show leniency to Pro se litigants, [they] will not serve as de facto counsel, or rewrite an otherwise deficient pleading in order to sustain an action.” Nalls v. Coleman Low Fed. Inst., 307 F. App'x. 296, 298 (11th Cir. 2009) (per curiam) (citation and internal quotation marks omitted).
When considering cross-motions for summary judgment, the standard does not change. The court views the facts “in the light most favorable to the non-moving party on each motion.” See Chavez v. Mercantil Commercebank, N.A., 701 F.3d 896, 899 (11th Cir. 2012) (citation omitted).
II. THE RECORD EVIDENCE
Before setting forth the relevant material facts in this case, the Court points out that the record evidence presents some anomalies because the parties applied legal authority inapplicable to the Court's resolution of their motions. These legal errors affected what evidence the parties did, or did not, present to the Court. As for Defendant's error, it argues that collateral estoppel requires this Court to give preclusive effect to the findings of fact made by the Administrative Law Judge (“ALJ”) during the administrative proceedings that preceded this lawsuit. That is not a correct reading of the law as explained more fully below. Due to Defendant's faulty view that collateral estoppel applies to this case, Defendant cited extensively to the ALJ's Recommended Order as summary judgment evidence. See ECF No. 41. Because the ALJ's findings were never reviewed by the state court, the Court cannot accept those facts. Notwithstanding the problem with Defendant's reliance on the ALJ's findings, Defendant nevertheless submitted sworn testimony sufficient for the Court to resolve its motion.
As for Plaintiff's error, he seems to have applied both the legal standard for a motion to dismiss and the standard for a motion for summary judgment. See ECF No. 44 at 1 & 14. Because Plaintiff conflated the two different standards of review, Plaintiff does not argue that he is entitled to judgment as a matter of law. Rather, Plaintiff argues that his case should not be dismissed because he has stated a prima facie case of discrimination. See id. at 14-15. Furthermore, documents filed in support of Plaintiff's motion are bereft of evidence of discrimination. For example, Plaintiff attached Defendant's responses to Plaintiff's First Set of Interrogatories, ECF No. 44 at 23-29, without explaining how the responses support his motion. Upon review, none of Defendant's interrogatory responses supports Plaintiff's claims of discrimination. Similarly, the other four (4) documents Plaintiff submitted in support of his motion do not establish that Plaintiff was discriminated against on the basis of sex or age. Id. at 30-42. Finally, Plaintiff's memorandum alleges facts far outside of the scope of the claims asserted in this lawsuit such as “Gadsden County Teachers are paid big bonuses for teaching students how to cheat!” ECF No. 44 at 5 ¶ 11. And, “Defendants gave me the wrong [pay] check.” Id. at 7 ¶ 12. And, “Defendants are robbing the bank.” Id. at 7 ¶ 3. In sum, Plaintiff has not supported his motion for summary judgment with any evidence that would entitle him to judgment as a matter of law on his sex or age discrimination claims.
These four (4) documents include (1) an out-of-context chart showing race and gender percentages for Gadsden County's 2020-2021 Administrative and Faculty Positions, ECF No. 44 at 30; (2) an unrelated hand-written note dated February 14, 2019 from the principal to Plaintiff, id. at 31; (3) unrelated minutes from the May 25, 2021 GCSB meeting, id. at 32-41; and (4) an irrelevant copy of Plaintiff's direct deposit receipt dated June 10, 2013, id. at 42.
To complicate matters, Plaintiff's memorandum in opposition to Defendant's motion for summary judgment cites to Defendant's responses to Plaintiff's First Set of Interrogatories as summary judgment evidence- but only as evidence of racial discrimination and retaliation, which claims are not alleged in the Complaint. See ECF No. 47 at 3, compare ECF No. 11. So, although Plaintiff correctly cited to the record in opposition to summary judgment, he did not cite to any evidence that would counter Defendant's evidence that it did not discriminate against him on the basis of sex or age. Additionally, Plaintiff filed forty-one (41) pages of other documents in opposition most of which are wholly unrelated to Plaintiff's sex and age discrimination claims. See ECF No. 47 at 25-59. Among the
The other documents Plaintiff filed in opposition include the following: (1) Defendant's Responses to Plaintiff's Second Interrogatories, ECF No. 47 at 25-32, which were properly objected to as not relevant; (2) Plaintiff's unanswered and undated Third Set of Interrogatories, id. at 33-37, which is comprised of off-topic rants rather than questions directed at gender or age discrimination in hiring; (3) Gadsden County Public Schools Employment Recommendation Form dated November 19, 2017, which predates by two (2) years the allegations in the Complaint and has nothing to do with Plaintiff's claims that GCSB discriminated against him in 2019-2020, id. at 38; (4) an out-of-context chart showing race and gender percentages of Gadsden County's 2020-2021 Administrative and Faculty positions, id. at 39; (4) Respondent's Proposed Exhibits and Witness List for the 2021 administrative hearing held in Ronald D. Jones v. Florida Dept' of Educ., Case No. 21-001494 (Jul. 8, 2021), id. at 40-41; (5) an affidavit by Florida Department of Education Chief of Bureau of Educator Certification attesting that Plaintiff was denied a temporary teaching certificate in 2017 because Plaintiff failed to request its issuance, id. at 42-43 ¶¶ 4-5; (6) e-mail exchanges between Plaintiff and counsel for the Department of Education, discussing additional witnesses requested for the 2021 administrative hearing, id. at 45-46; (7) a list of four (4) teachers hired by Gadsden County Schools with criminal backgrounds who were referred to the Florida Department of Education for clearance, the last of which happened one (1) year before the events giving rise to this lawsuit took place, id. at 46-50; and (8) a letter from the Florida Department of Education stating that Plaintiff was eligible for a temporary certificate, social sciences Grades 5-9, id. at 54-56, along with a similar letter stating the Plaintiff was eligible to teach social studies (Grades 6-12) one year after the events complained of in this action, id. at 57-59.
forty-one (41) pages, the only relevant documents include (1) the Declaration of the Florida Department of Education's Deputy Chancellor for Educator Quality, attesting that Plaintiff held a certificate of eligibility for teaching social sciences for Grades 6-12 during the relevant time period, ECF No. 47 at 51; (2) a copy of Plaintiff's Temporary Educator's Certificate dated July 7, 2008, certifying him to teach social sciences for Grades 5-9 until June 30, 2020, id. at 44; and (3) a letter from the Florida Department of Education stating that Plaintiff was eligible for a temporary teaching certificate covering social studies (Grades 6-12) during the relevant time period. Id. at 52-53. Though relevant, these documents do not advance Plaintiff's case. That is because the parties do not dispute that Plaintiff was eligible for the full-time teaching positions for which applied. Rather, the parties' dispute is over whether Defendant failed to hire Plaintiff for an unlawful reason. None of Plaintiff's document submissions addresses this crucial point.
The Court notes that Plaintiff complains in his opposition memorandum that “Defendant did not complete answer Plaintiff's First and Second Interrogatories and did not answer Third Interrogatories at all.” ECF No. 47 at 1. Upon review, Defendant appropriately answered and also lodged valid objections to Plaintiff's First and Second Set of Interrogatories. See ECF No. 47 at 18-32. As for Plaintiff's Third Set of Interrogatories, Plaintiff provides no proof of service or a date when the interrogatories were served. See id. at 33-36. And, even if he had, the Third Set of Interrogatories are clearly not relevant to Plaintiff's sex or age discrimination claims. See id.
Notwithstanding these deficiencies, Plaintiff's verified Complaint as well as excerpts of Plaintiff's hearing testimony (submitted by Defendant) are before the Court. They, along with Defendant's sworn testimony, establish that there is no genuine issue for a jury to decide on Plaintiff's sex and age discrimination claims, as discussed below.
III. RELEVANT MATERIAL FACTS
Taking into account the anomalies in the record explained above, the undisputed facts are as follows: Plaintiff is an African-American male who was 62-years old during the 2019-2020 school year. See ECF No. 44 at 1 ¶ 1. At that time, Plaintiff worked as a substitute social studies teacher for Defendant Gadsden County School Board (“GCSB”). Id. at 2 ¶ 5. In mid-2019 through early 2020, Plaintiff applied for full-time positions as a social studies teacher at Gadsden County High School (“GCHS”). ECF No. 11 at 5 ¶¶ 2-3. When he applied for the full-time positions, Plaintiff held a temporary teaching certificate for social sciences (Grades 6 through 12)- effective Oct. 12, 2017 through October 12, 2020. ECF No. 47 at 52-53. GCSB did not interview or hire Plaintiff for any of the seven (7) full-time open positions for which he applied. ECF No. 11 at 5 ¶ 2. Instead, GCSB hired the applicants listed below.
Defendant says that Plaintiff also applied to be a graduation coach and a special assignment teacher. See ECF No. 41 at 4. Because Plaintiff does not allege that he was discriminated against when Defendant failed to select him for these positions, the Court does not address them.
ECF No. 11 at 6 ¶ 4. While the parties agree on the facts up to this point, the parties disagree on the reason GCSB decided not to hire Plaintiff.
Person Hired
Position
Age
Sex
Race
Stephanie Dauphin
Social Studies
23
F
African-American
Devonte Knight
Social Studies
M
African-American
Albert Plewa
Social Studies
29
M
Caucasian
Dominga Robinson
Social Studies
31
F
African-American
Erin Shields
Social Studies
33
F
African-American
Laquadra Simmons
Social Studies
38
F
African-American
Ciara Stephenson
Social Studies
32
F
African-American
Defendant contends that Mr. Knight was 27-years-old at the time Plaintiff was not hired. ECF No. 41 at 4. Whether Mr. Knight was 27 or 25 years old at the time GCSB hired him is not material to Plaintiff's claims.
Plaintiff says he was not hired because of his gender and his age. ECF No. 11. Defendants contend that Plaintiff was not hired because (1) the GCSB database flagged Plaintiff as ineligible for hiring due to his criminal history and (2) the hiring official (the GCHS principal) determined Plaintiff was unsuitable for full-time teaching because he could not control his classroom as a substitute teacher. ECF No. 41 at 3-4. To resolve the parties' dispute, the ALJ held an evidentiary hearing during which Plaintiff, the GCHS principal, and the GCHS vice-principal testified. After the hearing, the ALJ issued a Recommendation Order comprised of Findings of Fact and Conclusions of Law. ECF No. 40-1. Because the ALJ findings were not reviewed by the state court, the Court cannot defer to them. See Discussion at IV.A. below. The Court can, however, rely on the parties' citations to the hearing testimony as summary judgment evidence. See Fed. R. Civ. P. 56(c)(1)(A).
Focusing on the dispute over why Defendant failed to hire Plaintiff, for purposes of summary judgment, the Court assumes that the allegations set forth in the verified Complaint are true and the Court construes the allegations liberally because of Plaintiff's Pro se status, as follows:
GCSB hired two (2) men for the seven (7) social studies teaching positions for which Plaintiff applied. The teaching positions were, therefore, filled mostly by females. See ECF No. 11 at 6 ¶ 4. On one occasion, GCSB hired an African-American female “straight out of college with no teaching experience” instead of Plaintiff, even though Plaintiff was the substitute teacher for the class at the time. Id. at 5 ¶ 3. Moreover, the GCHS principal hires more women than men such that “the whole social studies department . . . [has] about two men in the whole department and about 10 females.” Hearing Testimony of Ronald D. Jones, ECF No. 40-5 at 79:16-19. Additionally, GCSB filled each of the full-time social studies teacher positions with an applicant who was under forty (40) years of age. See ECF No. 11 at 6 ¶¶ 4-5.
The GCHS principal did not interview Plaintiff for any of the open teaching positions because Plaintiff had been mistakenly flagged as ineligible for hiring due to his criminal history. ECF No. 47 at 2; Hearing Testimony of GCHS Principal Pamela Jones, ECF No. 40-6 at 101:1-5; Defendant's Responses to Plaintiff's First Set of Interrogatories No. 3, ECF No. 47 at 19-20. Plaintiff is the only applicant who was not interviewed or hired “because ineligible mistakenly appeared on an application.” Defendant's Responses to Plaintiff's First Set of Interrogatories No. 4, ECF No. 47 at 20. Further, the GCHS principal did not interview or hire Plaintiff despite the fact that, prior to the interviews, Plaintiff provided the principal with a letter from the Florida Department of Education clearing him to teach. See ECF No. 47 at 6; Hearing Testimony of GCHS Principal Pamela Jones, ECF No. 40-6 at 100:25 - 101:1-3.
Plaintiff assumes that he has been discriminated against anytime Defendant hires someone of a different race, sex, or age than him. Hearing Testimony of Ronald D. Jones, ECF No. 40-5 at 78:15 - 82:5. Plaintiff's evidence that GCSB discriminated against him rests on “the fact that [Defendant] never hired [him]” and nothing more. Id. at 70:5-13.
Beyond Plaintiff's hearing testimony, the record contains no other evidence of discrimination. Instead, the record reflects that GCSB decided not to hire Plaintiff for reasons unrelated to his sex or age. In addition to Plaintiff's having been erroneously flagged as ineligible for hiring due to his criminal history, the GCHS principal also determined that Plaintiff was not suitable for full-time teaching because Plaintiff could not control his classroom as a substitute teacher. Hearing Testimony of GCHS Principal Pamela Jones, ECF No. 40-6 at 99:3-100:1; see also id. at 94:7-9 (Q: Did you have any problem with discipline in my classroom? A: Yes.).
As far as Plaintiff's being flagged as ineligible for hiring, the parties dispute how the flagging came about. Plaintiff contends that someone intentionally flagged him as ineligible to deprive him of an interview. ECF No. 47 at 3. In support of this allegation, Plaintiff relies on Defendant's admission that Plaintiff is the only person who has ever been flagged this way by mistake. Id. at 11; see also Defendant's Response to Plaintiff's Interrogatory No. 4, ECF No. 47 at 20. Defendant says that Plaintiff's own input into the GCSB hiring database caused him to be flagged as ineligible, because Plaintiff disclosed that he had a criminal conviction when he applied for the jobs. Hearing Testimony of GCHS Principal Pamela Jones, ECF No. 40-6 at 96:1-3). Despite the parties' disagreement on how Plaintiff came to be flagged, the parties agree that Plaintiff was “flagged” due to his criminal history. Thus, the flagging (intentional or not) had nothing to do with Plaintiff's sex or age.
The principal and vice-principal both testified that Plaintiff had difficulty managing his classroom as a substitute teacher. According to the principal, “if you can't manage the classroom, you can't teach the students.” Hearing Testimony of GCHS Principal Pamela Jones, ECF No. 40-6 at 99:22-23. Similarly, the GCSB vice-principal-who oversaw student discipline and had observed Plaintiff as a substitute teacher-testified that he had communicated to the principal that Plaintiff had “classroom management issues” such that Plaintiff should be replaced as a substitute teacher. Hearing Testimony of Vice-Principal Elijah Key, Jr., ECF No. 40-7 at 112:22 - 113:9. Specific classroom management issues observed by the vice-principal included Plaintiff's “writing up” some students for cell phone usage while allowing other students to use their cell phones during class, which is against school policy. Id. at 107:14-19; 109:22-24. Also “inappropriate” was Plaintiff's giving his students sodas and candy while at school. Id. 109:10-17. Given these classroom management problems, the GCHS principal testified that she probably would not have hired Plaintiff even if he had not been mistakenly flagged as ineligible. Hearing Testimony of GCHS Principal Pamela Jones, ECF No. 40-6 at 99:16-18, 21-23.
Turning to the record evidence related to Plaintiff's age discrimination claim, Plaintiff's support for this claim rests solely on the chart cited above listing the ages of the persons hired for the positions (which Defendant does not dispute). See ECF No. 11 at 6 ¶ 4 & ECF No. 41 at 4. The only other evidence related to age discrimination in the record is a declaration by the GCHS principal in which she attests that she hired at least fifteen (15) teachers who were more than forty (40) years old for the 2019-2020 school year. Declaration of GCHS Principal Pamela Jones, ECF No. 40-8 ¶ 4. Three (3) of the teachers hired were older than Plaintiff, and one of them, who was hired as a Social Studies teacher, was eighty (80) years old. Id.
Upon review, Plaintiff has not pointed to any evidence in the record beyond his own testimony and unsupported allegations to rebut Defendant's evidence that it did not discriminate against him on the basis of sex or age.
IV. Defendant's Motion for Summary Judgment, ECF No. 41
Defendant's argument that GCSB is entitled to summary judgment is three-fold. First, Defendant contends that Plaintiff's claims are barred by collateral estoppel because the discrimination claims lodged in this lawsuit were fully litigated and resolved by the ALJ during the administrative process. ECF No. 41 at 7-10. On this argument, Defendant misreads the law. Second and third, Defendant argues that Plaintiff failed to make out a prima facie case of discrimination, and even if he did, he failed to show that Defendant's proffered reasons for not hiring him were pretextual. ECF No. 41 at 11-14. On these points, the Court finds merit. First, the Court considers Defendant's collateral estoppel argument.
A. Collateral Estoppel Does Not Apply To This Case
Defendant asks the Court to grant it judgment as a matter of law on Plaintiff's Title VII and ADEA discrimination claims because Plaintiff had a “full and fair opportunity to litigate these issues in the administrative process.” ECF No. 41 at 10. In support of this argument, Defendant cites to the ALJ's March 30, 2021 Recommended Order, finding that Plaintiff failed to show that the GCSB discriminated against him on the basis of sex, race, or age, or that GCSB retaliated against him; thus, the ALJ recommended dismissal. See Recommended Order (Mar. 30, 2021), Jones v. School Board of Gadsden, DOAH Case No. 20-449, ECF No. 40-1 at 17. Defendant represents that the FCHR adopted the ALJ's recommendation to dismiss Plaintiff's case, and that Plaintiff did not appeal the final order. See ECF No. 41 at 10.
Plaintiff does not allege race discrimination or retaliation in his operative complaint even though he raised and litigated that issue at the administrative level and despite his raising these issues in his summary judgment memoranda. See ECF No. 11, compare ECF No. 44 at 2-4 & ECF No. 47 at 3-5, 9-10. Consequently, the Court will confine its review to Plaintiff's sex and age discrimination claims.
In support of its collateral estoppel argument, Defendant relies on Kremer v. Chemical Constr. Corp., in which the United States Supreme Court held that “Title VII does not repeal the application of 28 U.S.C. § 1738 which requires federal courts to give the same preclusive effect to state court judgments that the judgments would be given in the courts of the State from which the judgments emerged.” 456 U.S. 461,466-68, 102 S.Ct. 1883, 1889-90, 72 L.Ed.2d 262 (1982). Specifically, the Court concluded that 28 U.S.C. § 1738 requires that full faith and credit be given by the federal courts to a state court decision upholding a state administrative agency's rejection of an employment discrimination claim if two criteria are met: (1) the court of the state from which the judgment emerged would grant preclusive effect to the judgment, and (2) the state proceedings, including the administrative action and judicial review of this action, do not violate the procedural requirements of the Fourteenth Amendment's Due Process Clause. Kremer, 465 U.S. at 463, 102 S.Ct. at 1887-88.
28 U.S.C. § 1738 provides, in relevant part, that “[t]he records and judicial proceedings of any court of any . . . State . . . shall have the same full faith and credit in every court within the United States . . . as they have by law or usage in the courts of such State . . . from which they are taken.”
While Defendant is correct about Kremer's holding, the Court also explained in a footnote that:
EEOC review of discrimination charges previously rejected by state agencies would be pointless if the federal courts were bound by such agency decisions. Batiste v. Furnco Constr. Corp., 503 F.2d 447, 450, n.1 (7th Cir. 1974). Nor is it plausible to suggest that Congress intended federal courts to be bound further by state administrative decisions than by decisions of the EEOC. Since it is settled that decisions by the EEOC do not preclude a trial de novo in federal court, it is clear that unreviewed administrative determinations by state agencies also should not preclude such review even if such a decision were to be afforded preclusive effect in a State's own courts. Garner v. Giarrusso, 571 F.2d 1330 (5th Cir. 1978); Batiste v. Furnco Constr. Corp., supra; Cooper v. Philip Morris, Inc., 464 F.2d 9 (6th Cir. 1972); Voutsis v. Union Carbide Corp., 452 F.2d 889 (2nd Cir. 1971).Kremer, 456 U.S. at 470, 102 S.Ct. at 1892, n.7; see also Univ. of Tenn. v. Elliott, 478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986) (finding that § 1738 applies to state court judgments but not unreviewed administrative determinations and no preclusive effect will be given in a subsequent Title VII action); McInnes v. California, 943 F.2d 1088, 1093-94 (9th Cir. 1991).
Thus, the holding in Kremer does not extend to Title VII cases such as this one where the state agency's administrative determination has not been reviewed by the state court.
Defendant also cites several Eleventh Circuit cases which stand for the proposition that “[a] state court's decision upholding an administrative body's findings has preclusive effect in a subsequent federal court proceeding[.]” Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999); Carlisle v. Phenix City Bd. of Educ., 849 F.2d 1376, 1378 (11th Cir. 1988); Quinn v. Monroe Cty., 330 F.3d 1320, 1328-29 (11th Cir. 2003); Barrington v. Fla. Dep't of Health, 112 F.Supp.2d 1299, 1301 (M.D. Fla. 2000). Upon review of the cases cited by Defendant, each involved administrative determinations that had been reviewed by the state courts. That did not happen here. Here-and Defendant concedes this point-no appeal of the FCHR's final order was taken. See ECF No. 41 at 10. Thus, the state courts did not review the administrative determinations of the FCHR. That means that the state proceedings in this matter began and ended at the administrative level. As the Eleventh Circuit has explained, “it is the state court judgment, and not the agency decision, that triggers the full faith and credit requirement of Section 1738.” Burney v. Polk Cmty. Coll., 728 F.2d 1374, 1380 (11th Cir. 1984). Absent a state court judgment, collateral estoppel does not apply.
Also, Plaintiff's participation in the Title VII administrative process simply means that he cleared a necessary hurdle prior to bringing his discrimination claims to this Court. Initial resort to state administrative remedies does not deprive an individual of a right to a federal trial de novo on a Title VII claim. In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976), the Supreme Court held that the “civil action” in federal court following an EEOC decision was intended to be a trial de novo. See also Reedy v. Fla., Dept. of Educ., 605 F.Supp. 172, 173 (N.D. Fla. 1985) (declining to apply collateral estoppel to Plaintiff's Title VII claims on the grounds that “Kremer clearly applies only to state court decisions.”) (emphasis in original). Consequently, Plaintiff did not forfeit his right to fully litigate his case in federal court by submitting to the state's administrative process. “In a Title VII action a prior state decision enjoys issue preclusive effect only if rendered or reviewed by a court. . . . In contrast, unreviewed administrative determinations lack preclusive effect in a subsequent Title VII action, regardless of any preclusive effect state law might accord to them.” Crapp v. City of Miami Beach, 242 F.3d 1017, 1022 (11th Cir. 2001) (quoting McInnes, 943 F.2d at 1093-94 (9th Cir. 1991), and relying on Elliott, 478 U.S. at 796, 106 S.Ct. 3220) (internal quotation marks omitted).
Finally, it would be unjust to require Title VII litigants to exhaust their administrative remedies prior to filing suit in federal court and then deprive them of the ability to fully litigate their claims upon arrival because the case had already been decided by an ALJ (at a proceeding where trial by jury is not an option). Accordingly, Defendant is not entitled to summary judgment on collateral estoppel grounds.
Having concluded that summary judgment is not appropriate on Defendant's first argument, the Court turns to Defendant's other arguments that summary judgment is warranted because Plaintiff cannot show that he was discriminated against under the McDonnell-Douglas framework.
B. Sex Discrimination Claims (Title VII)
Title VII prohibits discrimination in employment decisions on the basis of “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). A plaintiff may prevail on his employment discrimination claim by proving that discrimination was a “motivating factor” in the employment decision. Holland v. Gee, 677 F.3d 1047, 1055 (11th Cir. 2012). A plaintiff may offer either direct or circumstantial evidence to support his claim of employment discrimination. See Gray v. DeLoitte LLP, 849 F. App'x, 843, 844 (11th Cir. 2021) (per curiam) (citing Dixon v. Hallmark Cos., 627 F.3d 849, 854 (11th Cir. 2010)).
“[D]irect evidence of discrimination . . . [is] evidence which reflects a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004) (citation and internal quotation marks omitted), abrogated on other grounds by Lewis v. City of Union City, 918 F.3d 1213, 1218 (11th Cir. 2019) (en banc). In this Circuit, “only the most blatant remarks, whose intent could mean nothing other than to discriminate on the basis of some impermissible factor constitute direct evidence of discrimination.” Wilson, 376 F.3d at 1086 (citations and internal quotation marks omitted).
Absent direct evidence, the court applies the burden-shifting framework set forth in McDonnell Douglas. See Gray, 849 Fed.Appx. at 844. McDonnell Douglas requires a plaintiff to make out a prima facie case of discrimination. Id. at 845 (citation omitted); see also Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003). Upon a plaintiff's establishing a prima facie case, a presumption arises that the employer discriminated against the employee. Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997). The burden at this stage “is exceedingly light.” Perryman v. Johnson Prods. Co., 698 F.2d 1138, 1142 (11th Cir. 1983). It is merely a burden of production, not a burden of proof. Id.
If the Plaintiff establishes a prima facie case, then the burden shifts to the employer to articulate a legitimate reason for the adverse action. Gray, 849 Fed.Appx. at 845. If the employer proffers a legitimate, non-discriminatory reason, then the burden returns to the employee to prove that the employer's reason is a pretext for unlawful discrimination. Crawford v. Carroll, 529 F.3d 961,976 (11th Cir. 2008); see also Lee v. GTE Fla., Inc., 226 F.3d 1249, 1253 (11th Cir. 2000) (per curiam).
In the case at hand, Plaintiff does not allege direct evidence of sex discrimination. Rather, Plaintiff points to the fact that he was not hired in favor of five (5) female applicants-along with two (2) other male applicants. ECF No. 11 at 6 ¶ 4. The Court will thus analyze Plaintiff's claims on the basis of indirect, circumstantial evidence.
To prevail under Title VII in a circumstantial evidence case, a plaintiff must show that: (1) he was a member of a protected class; (2) he was qualified for the job; (3) he suffered an adverse employment action; and (4) his employer treated similarly situated employees outside the protected class more favorably.” Hopkins v. St. Lucie Cty. Sch. Bd., 399 Fed.Appx. 563, 565 (11th Cir. 2010) (per curiam) (citing Crawford, F.3d at 970).
Viewing the evidence in the light most favorable to Plaintiff: (1) Plaintiff is a member of a protected class with respect to his sex (male) and age (over forty); (2) Plaintiff applied for full-time employment with the GCSB as a social studies teacher; and (3) Plaintiff was rejected. Failure-to-hire is an adverse employment action under Title VII. An “adverse employment action includes termination, failure to hire, or demotion. Blue v. Dunn Const. Co., 453 Fed.Appx. 881,884 (11th Cir. 2011) (citation and internal quotation omitted). As for whether Plaintiff was qualified for the positions for which he applied, the record shows that Plaintiff held a temporary teaching certificate for social sciences Grades 6 through 12 during the relevant time period. Defendant does not dispute that Plaintiff was qualified for the social studies teaching positions. Instead, Defendant contends that Plaintiff was unfit. So, for purposes of summary judgment, the Court accepts that Plaintiff was qualified for the positions for which he applied.
See, e.g., Windhauser v. Bausch & Lomb, Inc., 302 F.Supp.2d 139, (W.D.N.Y. 2003) (finding male over the age of forty (40) to be member of a protected class in a case where he alleged that he was discriminated against on the basis of gender and age).
Looking at the fourth element, it is undisputed that the full-time teaching positions were filled mostly by females-five (5) women out of seven (7) open positions. See ECF No. 11 at 6 ¶ 4. That said, Plaintiff provides virtually no facts that would allow a court to infer that GCSB treated similarly-situated persons outside of Plaintiff's class of males more favorably. Instead, his complaint and testimony provide mostly conclusory allegations of discrimination and largely fail to provide sufficient factual matter to establish a prima facie case of sex discrimination. Plaintiff does allege, however, that, on one occasion, GCSB hired an African-American female “straight out of college with no teaching experience” instead of Plaintiff, even though Plaintiff was the substitute teacher for the class at the time. Construing this allegation quite liberally, Plaintiff still does not state a prima facie case. That is because Plaintiff does not sufficiently allege that the female selected was similarly situated to him in every respect. All we know is that the person selected was an African-American female who held a college degree but who lacked teaching experience. And, even if Plaintiff had provided facts sufficient to show that the selectee was similarly situated to Plaintiff in all respects, Plaintiff's failure to show pretext is fatal to his claims.
Before the Court reaches pretext, however, the Court turns to Defendant's proffered reasons for not hiring Plaintiff. Defendant gave two (2) such reasons. First, Defendant submitted sworn hearing testimony by the GCHS principal and vice-principal that Plaintiff was not fit for full-time teaching. The GCHS principal testified that Plaintiff had trouble managing his classroom, which she viewed as a key component of effective teaching. The principal further testified that she would not have hired Plaintiff for that reason alone. Hearing Testimony of GCHS Principal Pamela Jones, ECF No. 40-6 at 99:16-18 & 21-23. Likewise, the GCHS vice-principal testified that he had observed Plaintiff as a substitute teacher and had recommended to the principal that Plaintiff be replaced because Plaintiff had classroom management issues. Hearing Testimony of GCHS VicePrincipal Elijah Key, Jr., ECF No. 40-7 at 107:5-14; 112:22-25.
The second reason proffered for not hiring Plaintiff was that Plaintiff's self-disclosure of his prior criminal history in his job application resulted in his being flagged him as “ineligible” for hiring. Hearing Testimony of GCHS Principal Pamela Jones, ECF No. 40-6 at 96:1-3. The parties dispute whether the GCSB database automatically flagged Plaintiff as ineligible, or whether Defendant staff purposefully made the entry to disqualify Plaintiff. Notwithstanding the dispute over how Plaintiff was flagged, there is no allegation or record evidence that the “flagging” was done based on Plaintiff's sex (or age for that matter). Viewing the evidence in the light most favorable to Plaintiff, even if Defendant staff intentionally flagged him as ineligible due to his criminal background, there is no evidence that the flagging was done to discriminate against Plaintiff on the basis of gender (or age).
In his opposition memorandum, Plaintiff argues that flagging a person “ineligible” for hiring based on the person's criminal history “could become disparate impact race discrimination” because “African-Americans are seven times more likely to be convicted of criminal offenses than Caucasians[.]” ECF No. 47 at 3. Even if the Court were to accept Plaintiff's assertion here, Plaintiff has not alleged race discrimination in this lawsuit. See ECF No. 11. And, in view of Plaintiff's concession that six (6) of the seven (7) persons hired were African-American, Plaintiff would be hard pressed to survive summary judgment on a racial discrimination claim.
Having examined the two (2) reasons proffered by Defendant, the Court finds that Defendant met its burden of coming forward with objectively non-discriminatory reasons for not hiring Plaintiff as a full-time social studies teacher. Thus, the presumption of discrimination is eliminated.
Now the burden returns to Plaintiff to put forward some evidence to show that Defendant's proffered reasons are pretextual for sex discrimination.
“A plaintiff in a discrimination case based on circumstantial evidence can avoid judgment as a matter of law by putting on a prima facie case and by producing evidence sufficient to discredit in the mind of a reasonable juror all of the defendant's proffered nondiscriminatory reasons for its actions.” Combs v. Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir. 1997). In this case, Plaintiff “failed to produce evidence to permit a reasonable juror to reject as spurious Defendant's explanation” that it did not hire Plaintiff because he was unfit for the job. See id. And, here is where Plaintiff's sex discrimination claim ends.
Rather than refute Defendant's evidence that Plaintiff had trouble controlling his classroom, Plaintiff seems to agree that some of his students were unruly. See Hearing Testimony of GCHS Vice-Principal Elijah Key, Jr., ECF No. 40-7 at 110:12-15 “Q (from Plaintiff): When I wrote referrals where students verbally abused me and physically abused me, and nobody never did anything on them, you never acted on a referral that I wrote?”). Moreover, Plaintiff has not pointed to any evidence in the record to show that GCSB's proffered reasons were pretextual beyond Plaintiff's own testimony that his not being hired was proof in and of itself of sex discrimination. At this final stage of the burden-shifting analysis, Plaintiff must point to evidence in the record that would allow a reasonable fact finder to conclude that the reason proffered for the employment decision was pretext for discriminating against Plaintiff because he is male. Chapman v. AI Transport, 229 F.3d 1012, 1024-25 (11th Cir. 2000). Plaintiff failed to do so. Plaintiff's bare allegations of sex discrimination, especially in light of Plaintiff's concession that two (2) other males were also selected for the positions, cannot withstand summary judgment.
Accordingly, Defendant is entitled to judgment as a matter of law on Plaintiff's Title VII sex discrimination claims.
C. Age Discrimination Claims (ADEA)
Now turning to Plaintiff's claims for age discrimination. The ADEA makes it unlawful for employers “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.” 29 U.S.C. § 623(a)(1). As with claims of race or gender discrimination, a plaintiff can prove age discrimination through direct or circumstantial evidence. Sims v. MVM, Inc., 704 F.3d 1327, 1332 (11th Cir. 2013) (citing Mora v. Jackson Mem'l Found., Inc., 597 F.3d 1201, 1204 (11th Cir. 2010)).
In the case at bar, Plaintiff has pleaded no facts to suggest direct evidence of age discrimination. Thus, the Court must consider whether circumstantial evidence supports Plaintiff's claim that GCSB discriminated against him because of his age. An ADEA plaintiff may demonstrate circumstantial evidence of disparate treatment through the McDonnell Douglas burden-shifting framework discussed above. Chapman, 229 F.3d at 1024. “The burden of persuasion always remains on the plaintiff in an ADEA case to proffer evidence sufficient to permit a reasonable fact finder to conclude that the discriminatory animus was the ‘but-for' cause of the adverse employment action.” Sims, 704 F.3d at 1332 (citation omitted).
To establish a prima facie case of age discrimination, a plaintiff must demonstrate: (1) that he was a member of the protected group of persons between the ages of forty and seventy; (2) that he was subject to adverse employment action; (3) that he was qualified to do the job; and (4) that a younger individual was given the job instead. Horn v. UPS, Inc., 433 Fed.Appx. 788, 792 (11th Cir. 2011) (per curiam) (citing Chapman, 229 F.3d at 1024). The proper inquiry for the fourth element is whether the person selected for the position was “substantially younger” than the plaintiff. See O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 313, 116 S.Ct. 1307, 1310, 134 L.Ed.2d 433 (1996).
Applying these elements, Plaintiff is a member of the protected persons between the ages of forty (40) and seventy (70) because he was sixty-two (62) years old at the time of decision. So, Plaintiff satisfies the first element of an ADEA claim. Plaintiff also satisfies the second element because failure-to-hire is an adverse employment action under the ADEA. See Van Voorhis v. Hillsborough Cty. Bd. of Cty. Comm'rs, 512 F.3d 1296, 1300 (11th Cir. 2008) (per curiam) (“An adverse employment action [under the ADEA] is an ultimate employment decision, such as discharge or failure to hire, or other conduct that alters the employee's compensation, terms of employment, deprives him or her of employment opportunities, or adversely affects his or her status as an employee.”) (citations and internal quotation marks omitted). The parties agree that Defendant did not hire Plaintiff, so the second element is satisfied. Turning to the third element, the Court accepts for purposes of summary judgment that Plaintiff was qualified for the social studies teaching positions for the same reasons given above when analyzing Plaintiff's Title VII claims.
Now looking at the fourth element, it is undisputed that GCSB hired applicants who were younger than Plaintiff. The ages of the seven (7) persons hired ranged from twenty-three (23) to thirty-eight (38) years old. That means that the persons selected were between twenty-four (24) to thirty-nine (39) years younger than Plaintiff. Such a substantial age difference is sufficient to state a prima facie claim of age discrimination. See Liebman v. Metro. Life Ins. Co., 808 F.3d 1294,1299 (11th Cir. 2015) (per curiam) (finding that seven years younger is “substantially younger”) (citing Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1360 (11th Cir. 1999) (five years is enough); Carter v. DecisionOne Corp., F.3d 997, 1003 (11th Cir. 1997) (per curiam) (three years is enough); Carter v. City of Miami, 870 F.2d 578, 583 (11th Cir. 1989) (four years is enough)).
Accordingly, Plaintiff has made out a prima facie case of age discrimination. Now, the burden shifts to Defendant to put forward objectively non-discriminatory reasons for not hiring him. In addition to the two (2) reasons discussed above-that Plaintiff could not control his classroom and that Plaintiff's prior criminal record erroneously flagged him as ineligible for hiring-GCSB has also put forward evidence that its hiring officer, the GCHS principal, hired fifteen (15) teachers who were older than forty (40) for the 2019-2020 school year- albeit for teaching positions different from those Plaintiff sought. See Declaration of GCHS Principal Pamela Jones, ECF No. 40-8 ¶ 4. Specifically, the principal attests that she hired five (5) teachers who were older than Plaintiff during the 20192020 school year and that one person hired for a social studies teaching position was eighty (80) years old. Id. After due consideration, the Court finds that the principal's attestations are sufficient evidence to eliminate the presumption of age discrimination.
In the face of GCSB's rebuttal evidence, Plaintiff was required to point to some evidence that GCSB's proffered reasons for not hiring him were pretextual for age discrimination. That he has not done. “Federal courts do not sit as a super-personnel department that re-examines an entity's business decisions. No matter how medieval a firm's practices, no matter how high-handed its decisional process, no matter how mistaken the firm's managers, the ADEA does not interfere. Rather our inquiry is limited to whether the employer gave an honest explanation of its behavior.” Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991) (quoting Mchnig v. Sears, Roebuck & Co., 864 F.2d 1359, 1365 (7th Cir. 1988) (internal quotation marks omitted)).
As was the case with Plaintiff's Title VII claims, Plaintiff points to nothing in the record to suggest that age (instead of fitness) was the reason Defendants decided not to hire him. Plaintiff has failed to cite to any record evidence that would allow a reasonable fact finder to conclude that Plaintiff's age was the “but-for” reason that he was not hired. See Chapman, 229 F.3d at 1024-25. Instead, Plaintiff simply argues that the very fact that the people hired were younger than him is itself evidence that he was discriminated against on the basis of age. These assertions without further support cannot establish that Plaintiff's age was the “but for” factor. The Court also points out that Plaintiff testified that he assumes discrimination anytime someone who does not share one of his protected characteristics (sex, age, or race) is hired instead of him. Hearing Testimony of Ronald D. Davis, ECF No. 40-5 at 78:2 - 82:5. Assuming discrimination does not create a triable issue of fact.
Finally, although the age differences between the persons hired and Plaintiff are significant, the age differential merely put the ball in Defendant's court to rebut Plaintiff's prima facie case. In view of the testimony that Defendant hired five (5) teachers older than Plaintiff for the same school year, one of whom was an eighty (80) year old hired to teach social studies, Plaintiff's self-serving assumptions that he was discriminated against on the basis of age do not carry the day.
In sum, Plaintiff failed to proffer evidence sufficient to permit a reasonable fact finder to conclude that age was the “but-for” cause of GCSB's decision not to hire him. Accordingly, Defendants are entitled to judgment as a matter of law on Plaintiff's ADEA age discrimination claims.
V. PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, ECF No. 44
The Court has already mentioned that Plaintiff fails to point to evidence in the record to support his claims that GCSB discriminated against him on the basis of either sex or age. Under Federal Rule of Civil Procedure 56(c), the “party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548, 2552-53. On this record, it is not a close call that Plaintiff failed to meet his burden. Moreover, the Court informed Plaintiff that, under the Local Rules, summary judgment memorandums “must include pinpoint citations to the record evidence supporting each factual assertion.” ECF No. 45 at 7. Plaintiff did not comply with that directive. Instead, Plaintiff makes conclusory allegations that he “was not offered a job because of his age (over 40), and because Defendant hire[s] mostly women.” ECF No. 44 ¶¶ 5, 9.
Additionally, in his Complaint, Plaintiff alleges merely that he “believed” he was discriminated against based on his sex and age because GCSB hired individuals who fall outside of Plaintiff's protected classes of sex and age. ECF No. 11 at 5 ¶ 2. Thus, in Plaintiff's view, anytime someone outside of his protected classes is hired instead of him, he was discriminated against. To be entitled to summary judgment on claims of employment discrimination, Plaintiff must show far more. In Plaintiff's world, to prevail on summary judgment, Plaintiff need point only to that fact that the person hired did not share one of Plaintiff's protected characteristics. Under that standard, Plaintiff would prevail even in cases like this one where there is not one scintilla of evidence of sex or age discrimination - only speculation and conjecture.
While Pro se pleadings are entitled to a liberal interpretation by the courts, Pro se litigants do not escape the essential burden under summary judgment standards. See Brown, 906 F.2d at 670. In this case, Plaintiff has failed to show that he is entitled to summary judgment, especially on this record and especially when the Court must view the evidence in the light most favorable to the non-moving party-the Defendant-when ruling on Plaintiff's motion.
Accordingly, the Court concludes that Plaintiff's motion for summary judgment is due to be denied.
III. CONCLUSION
In view of the foregoing, the Court concludes the following:
(1) Defendant is entitled to judgment as a matter of law on Plaintiff's Title VII sex discrimination claims and ADEA age discrimination claims as no reasonable jury could find in Plaintiff's favor.
(2) Plaintiff is not entitled to judgment as a matter of law because he has not pointed to evidence in the record that would establish that Defendant discriminated against him on the basis of sex or age.
RECOMMENDATION
It is respectfully RECOMMENDED that Defendant's amended motion for summary judgment, ECF No. 41, be GRANTED.
Further, it is RECOMMENDED that Plaintiff's motion for summary judgment, ECF No. 44, be DENIED.
IN CHAMBERS
NOTICE TO THE PARTIES
This case was referred to the undersigned for the issuance of all preliminary orders and any recommendations regarding dispositive matters. See N.D. Fla. Loc. R. 72(C); see also 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b).
Objections to these proposed findings and recommendations must be filed within fourteen (14) days after being served a copy thereof. Any different deadline that may appear on the electronic docket is for the court's internal use only and does not control. An objecting party must serve a copy of its objections upon all other parties. A party who fails to object to the magistrate judge's findings or recommendations contained in a report and recommendation waives the right to challenge on appeal the district court's order based on the unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636 .