Karen Broughton v. School Board of Escambia County, Florida

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-15497
Non-Argument Calendar
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D.C. Docket No. 3:10-cv-00285-MCR-CJK
KAREN BROUGHTON,
Plaintiff - Appellant,
versus
SCHOOL BOARD OF ESCAMBIA COUNTY, FLORIDA,
Defendant - Appellee.
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Appeal from the United States District Court
for the Northern District of Florida
________________________
(September 4, 2013)
Before CARNES, Chief Judge, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
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Karen Broughton, proceeding pro se, appeals the district court’s grant of
summary judgment in favor of her employer, the School Board of Escambia
County (the Board), on her Title VII retaliation claim. After review, we affirm.
I.
In 2003, the Board hired Broughton, an African-American woman, as a high
school teacher. Four years later, in June 2007, the Board terminated her
employment. Broughton then filed suit in state and federal court and a complaint
with the Equal Employment Opportunity Commission (EEOC) alleging the Board
discriminated against her. In January 2008, the Board reinstated Broughton and, in
June 2009, settled her lawsuits without admitting liability for discrimination.
In August 2009, Broughton’s son, B.B., began fourth grade at an Escambia
County elementary school. His class was co-taught by Mark Snider and Myra
Schofield. According to Broughton, Snider and another teacher who monitored the
lunch room, Tara Peterson, repeatedly harassed B.B. from December 2009 until the
end of the school year. 1 Broughton filed ethics complaints with the Board against
Snider and Peterson in March 2010, but an investigation spearheaded by school
principal Dr. Patti Thomas resulted in an April 2010 report saying Broughton’s
allegations of harassment were unfounded. That month, Broughton filed an
1
Broughton’s allegations relating to B.B.’s treatment by Board officials are detailed in the
district court’s two summary-judgment orders. Because of the posture and disposition of this
case, we need not repeat all the facts here.
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EEOC retaliation complaint, claiming Snider and Peterson had harassed B.B. in
retaliation for her 2007 EEOC complaint. She also sent emails to the school
superintendent calling Thomas and Schofield liars. She then filed complaints
against Thomas and Schofield, claiming Thomas lied during the earlier
investigation and that Schofield harassed B.B. in class. Later that month,
Schofield removed B.B. from her classroom, saying that B.B. was engaging in
disruptive behavior. This too, Broughton contends, was retaliatory.
Broughton sued the Board in August 2010, alleging that the Board retaliated
against her based on her history of litigation and complaints with the Board. She
claimed the Board did this by permitting school officials to engage in
discriminatory and abusive conduct against B.B. The Board moved for summary
judgment, arguing Broughton failed to establish a prima facie case of retaliation.
In September 2011, the district court granted summary judgment in favor of
the Board on Broughton’s claim based on the conduct prior to her April 2010
complaint with the EEOC. The court concluded Broughton could not show a
causal connection to this alleged conduct because it occurred before the 2010
complaint and was too remove in time from the 2007 complaint to evidence a
causal connection. See Dixon v. The Hallmark Companies, Inc., 627 F.3d 849, 856
(11th Cir. 2010) (requiring a causal connection between statutorily protected
activity and a materially adverse employment action to establish a prima facie
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retaliation claim). The court denied summary judgment with respect to
Broughton’s claim based on the one alleged retaliatory act that occurred after the
2010 complaint — B.B.’s removal from Schofield’s classroom — because it
occurred in close temporal proximity to the complaint and because the Board put
forth no evidence to show there was a legitimate reason for the action. See
Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001) (requiring
the employer to articulate a legitimate reason for the adverse action to obtain
summary judgment once a plaintiff establishes a prima facie retaliation claim).
In December 2011, the Board filed a motion for leave to file a second
summary-judgment motion with a newly obtained affidavit from Schofield
explaining why and under what authority she removed B.B. from her classroom.
The district court granted the motion and gave Broughton an opportunity to
respond. In her response, Broughton included affidavits from herself, her mother,
her husband, and former Escambia County principal and deputy superintendent
Jerome Watson. The Board moved to strike the affidavits, arguing that the first
three could not be reduced to admissible evidence and that Watson’s was not based
on personal knowledge. The court struck the affidavits and rendered judgment for
the Board, citing Schofield’s affidavit and Broughton’s failure to rebut the Board’s
asserted legitimate reason for B.B.’s removal from the classroom. This is
Broughton’s appeal.
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II.
On appeal, Broughton argues that the district court erred when it (1) granted
the Board leave to file a renewed motion for summary judgment; (2) struck the
affidavits she offered in response to the Board’s renewed motion; and (3) rendered
summary judgment in favor of the Board. We address each argument in turn.
A.
Broughton challenges the district court’s decision to permit the Board to file
a second motion for summary judgment based on additional evidence. She first
argues the Board’s request for leave to file a second summary-judgment motion
was actually a motion for reconsideration of the district court’s first order denying
summary judgment in part, and was, therefore, untimely under Federal Rule of
Civil Procedure 59(e). But in her response to the Board’s motion for leave to file
its renewed motion for summary judgment, she made no such contention. 2 She
accordingly forfeited any argument that the Board’s motion should be construed as
anything other than what it purported to be, namely, a request for leave to file a
second summary-judgment motion. See Sterling Fin. Inv. Grp. v. Hammer, 393
F.3d 1223, 1226 (11th Cir. 2004) (“[A]rguments not presented in the district court
2
Although Broughton did contend the motion was untimely under the district court’s scheduling
order, she made no mention of Rule 59(e) and we have long recognized a district court has
discretion consider an untimely motion for summary judgment. See Matia v. Carpet Transp.,
Inc., 888 F.2d 118, 119 (11th Cir. 1989) (holding that a district court may consider an untimely
motion for summary judgment when doing so serves the interests of judicial economy).
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will not be considered for the first time on appeal.” (internal quotation marks
omitted)).
She also contends that the district court’s initial rejection of summary
judgment on her claim based on B.B.’s removal from class became the law of the
case and, therefore, that the court could not revisit the issue. We disagree. “As a
general rule, the law of the case doctrine prohibits a court from revisiting an issue
once it has been decided in pending litigation.” Outside the Box Innovations, LLC
v. Travel Caddy, Inc., 695 F.3d 1285, 1301 (11th Cir. 2012) (internal quotation
marks omitted). Here, when the court denied the Board summary judgment, it did
not decide the causation issue once and for all. Instead, the court expressly
declined to decide the issue at that stage and, thus, created no binding law of the
case. Accordingly, the district court did not err in granting the Board leave to file a
renewed motion for summary judgment.
B.
Broughton next contends the district court erred in striking four affidavits
she included with her response to the Board’s renewed summary-judgment
motion.3 Broughton, her mother, and her husband stated in affidavits that
Schofield acted disrespectfully during a May 2010 meeting and to B.B. thereafter,
3
Broughton also argues the district court erred in striking an email written by a specialist with
the Florida Office of Safe Schools, but the district court actually allowed that email into
evidence.
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and that Schofield and school staff lied about B.B.’s misconduct and removal from
the classroom. Watson, a former Escambia County principal and deputy
superintendent, stated he was “well aware” that documented evidence of a
student’s disruptive, violent, or dangerous behavior was required to remove a
student from class, and that B.B. was removed for a reason other than these. The
district court struck the first three affidavits because the allegations they contained
were not admissible. The court struck Watson’s affidavit because it contained
mostly legal conclusions and its factual allegations were not based on personal
knowledge.
We review the district court’s decision to strike an affidavit for an abuse of
discretion. Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1259 (11th Cir. 2004).
Affidavits used to oppose a summary-judgment motion “must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the
affiant . . . is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).
In this case, the district court’s decision to strike the affidavits Broughton offered
was not an abuse of discretion. As the court correctly noted, the affidavits
Broughton, her mother, and her husband executed simply say Schofield lied and
mistreated B.B. without any supporting facts indicating how they arrived at those
conclusions. They therefore do not satisfy the standard Rule 56(c) requires. The
district court was also within its discretion to strike Watson’s affidavit. Because
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Watson did not work for the Board during the time period relevant to this case, he
lacks personal knowledge of the events that unfolded.
C.
Finally, Broughton contends the district court erred in rendering summary
judgment in the Board’s favor. We review de novo the district court’s grant of
summary judgment. Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th
Cir. 2010). Summary judgment is proper “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). “We draw all factual inferences in a light
most favorable to the non-moving party.” Shiver v. Chertoff, 549 F.3d 1342, 1343
(11th Cir. 2008).
Title VII prohibits employers from retaliating against an employee “because
[s]he has opposed any . . . unlawful employment practice . . . or because [s]he has
made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). To
establish a prima facie case of retaliation, the plaintiff must show that (1) she
engaged in statutorily protected activity; (2) she suffered a materially adverse
employment action; and (3) there was a causal link between the two. Dixon, 627
F.3d at 856. Once the plaintiff establishes these elements, the burden shifts to the
employer to articulate a legitimate, non-discriminatory reason for the adverse
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action. Pennington, 261 F.3d at 1266. To survive summary judgment, the plaintiff
must then create a question of fact as to whether the employer’s articulated reason
is a pretext for discrimination. Id.
We conclude that Broughton’s retaliation claim fails as a matter of law. As
the district court concluded, with respect to the acts that occurred before
Broughton’s 2010 EEOC complaint, Broughton failed to present any evidence
tying her protected conduct to B.B.’s alleged mistreatment. The alleged
harassment and misconduct that occurred prior to her April 2010 EEOC complaint
is so distant in time from her 2007 EEOC complaint that no reasonable jury could
find causation without additional evidence, which Broughton did not submit. See
Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004) (“If there is a substantial
delay between the protected expression and the adverse action in the absence of
other evidence tending to show causation, the complaint of retaliation fails as a
matter of law.”). Nor is that conduct — which began in December 2009 — close
enough in proximity to Broughton’s lawsuits, which concluded in June of that
year, to alone evidence causation. See id. at 1220-21 (three months between
protected conduct and alleged retaliation insufficient to imply causation); see also
Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (three
month period between complaint and adverse action, “without more,” does not
establish causal connection sufficient to survive summary judgment). Indeed,
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Broughton failed to put forth any evidence that Snider or Peterson knew of her
2007 EEOC complaint or lawsuits when the alleged adverse actions they took
occurred. And she did not even allege Snider, Peterson, or Thomas continued any
adverse actions after she filed her April 2010 EEOC complaint, so there could be
no causal link between that complaint and their alleged retaliation.
Also as the district court correctly found, even assuming Broughton
established a prima facie retaliation case with respect to Schofield’s conduct,
Schofield put forth a legitimate, non-discriminatory reason for removing B.B. from
the classroom — his disruptions and her statutory authority to remove students
who “interfere[] with the teacher’s ability to” teach. Fla. Stat. § 1003.32(4). And
Broughton failed to show this reason was pretextual. See Pennington, 261 F.3d at
1266. Accordingly, the district court was correct to conclude summary judgment
was appropriate on Broughton’s retaliation claim.
AFFIRMED.
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