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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION

KAREN BROUGHTON, Plaintiff, v. THE SCHOOL BOARD OF ESCAMBIA COUNTY, FLORIDA, Defendant. / ORDER Plaintiff Karen Broughton (Broughton) brought suit against her employer, the School Board of Escambia County, Florida (School Board), alleging retaliation in violation of Title VII of the Civil Rights Act of 1946, as amended, 42 U.S.C. 2000e-2000e-17. Pending before the court is the School Boards Second Motion for Summary Judgment with Memorandum in Support (doc. 84) and Statement of Facts (doc. 81). Broughton has responded (doc. 96) and filed her Statement of Facts ( doc. 97). The School Board has objected to certain portions of Broughtons supporting affidavits (doc. 98). objections will be addressed herein. On September 30, 2011, the court granted the School Boards first Motion for Summary Judgment on all claims except for Broughtons claim that teacher Myra Schofield (Schofield) retaliated with a materially adverse action against a third party, Broughtons son, B.B., by removing B.B. from her classroom. The courts order granting partial summary judgment set out the facts pertaining to the resolved claims and the law as applied to those facts, and they need not be repeated here. In denying summary judgment on this retaliation issue the court noted that the removal occurred within a month after Those CASE NO. 3:10cv285/MCR/MD

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Broughton filed an EEOC complaint against two other School Board employees, and Schofield participated in the related investigation of Broughtons prior claims. The court further noted that the School Board had failed to produce evidence in support of the removal claim, or any affidavit or testimony from Schofield showing a legitimate nondiscriminatory reason of it. The School Board has now filed an affidavit by Schofield that sets out the following relevant facts: (1) she first became aware that Broughton had made complaints against the way her son was being treated at school when she was copied with an accusatory email Broughton sent to Snider; (2) on April 12, 2010 she noted on B.B.s citizenship grade that he had been disrespectful and had engaged in name calling; (3) she was asked to provide information during the investigation concerning Broughtons ethics complaints against Snider and Peterson, other teachers; (4) when the investigation was concluded she received an email from Broughton stating that Broughton would be filing charges against Schofield personally; (5) a few days later she received an email from Broughton saying that Schofield had lied during the investigation, and that she (Broughton) would not accept a bad mark in citizenship or a D in math; (6) she never at any time searched B.B.s backpack or dumped the contents of his desk on the floor; (7) when she arrived at school on May 28, 2010, Broughton and some police officers were waiting for her; (8) the disruption caused by the police presence made it impossible for her to communicate effectively with her students; (9) that same day she filed a written request to have B.B. removed from her classroom under the authority of Fla. Stat. 1003.32(4) because B.B.s behavior was interfering with her ability to communicate with her students and with the ability of the students to learn, because B.B. had told his mother that Schofield was harassing him, had searched his backpack and dumped the contents of his desk on the floor, and because B.B. had told Schofield repeatedly that his mother had said he was not allowed to talk to Schofield; (10) although she was aware that Broughton had filed ethics complaints against Peterson and Snider, she did not become aware that Broughton had actually filed a complaint against her until after the instant lawsuit was filed.

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Broughton counters Schofields affidavit by saying in essence that it is all lies and that Schofield retaliated against her by removing her son from the classroom. She then challenges the method by which her son was removed from Schofields classroom, arguing that proper procedures were not followed. She claims that because Schofield was not teacher of record1, she would not be allowed to refuse B.B.s return to her classroom. In support of this procedural argument she presents the affidavit of a former School Board employee who opined that since the removal had been done improperly, he could only conclude that the removal of B.B. from the teachers classroom was for some other reason than the stated purpose of Florida Statute 1003.32(4). (Doc. 96-1, p. 31). Discussion The School Board is entitled to summary judgment for two reasons. First, Schofield attested that she was unaware that a formal complaint had been filed against her until after this suit was filed, and Broughton has not shown otherwise. It is true that Schofield was aware that Broughton had filed ethics charges against other staff, and that Broughton had threatened to charge Schofield, but neither of these is sufficient to support a finding of a prima facie case of retaliation. See Celotex Corp., 477 U.S. at 333, n.3 (Once the moving party has attacked whatever record evidence-if any-the nonmoving party purports to rely upon, the burden of production shifts to the nonmoving party, who must either (1) rehabilitate the evidence attacked in the moving partys papers, (2) produce additional evidence showing the existence of a genuine issue for trial . . . .; Anderson v. Liberty Lobby, Inc, 477 U.S. 242, 250 (1986) (providing that the standard for granting summary judgment mirrors the standard for for a directed verdict under Federal Rule of Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict). The second reason assumes a prima facie case. That is, if the courts analysis finds that a prima facie case has been made, which it does not, then the School Board must articulate a legitimate non-discriminatory reason for the adverse action. A Title VII

Snider and Schofield shared the classroom on a 60/40 basis. Schofield taught 40% of the tim e.

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retaliation claim based on circumstantial evidence, as here, is analyzed under the familiar burden-shifting rubric of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). The School Board has met Broughtons claims through the affidavit of Schofield. Schofield attests that B.B. made false claims against her to his mother which caused his mother to call the police to the school to confront her. She also attests that B.B. told her repeatedly in the classroom that his mother said he could not talk to her. Schofield attests she had B.B. removed from the classroom because his behavior interfered with her ability to communicate with the students in her classroom and with the students ability to learn and made it impossible to maintain a learning environment in the classroom. Fla. Stat. 1003.32 (4) provides: A teacher may remove from a class a student whose behavior the teacher determines interferes with the teachers ability to communicate effectively with the students in the class or with the ability of the students classmates to learn. Each district school board, each district school superintendent, and each school principal shall support the authority of teachers to remove disobedient, violent, abusive, uncontrollable, or disruptive students from the classroom. Schofields affidavit provides a legitimate non-discriminatory reason for removing B.B. from the classroom. Whether the removal was in strict accordance with the school boards regulations is irrelevant. The issue is not how B.B. was removed, but why. Broughtons position throughout this case has been that her son was harassed by teachers and other students and that he did not deserve being blamed for things that happened. However, Broughton as not produced any admissible evidence to support this position. All of her conclusions about whether and how B.B. was harassed come from what B.B. told her, which is inadmissible hearsay. Broughton has not produced any evidence from B.B. Moreover, the affidavits executed by Broughton, by her husband and by her mother recount numerous encounters with school staff, and all generally say that school staff lied, but Broughton has presented no evidence that Schofield removed her son for any reason other than that which Schofield contends.

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Finally, Mr. Watsons opinion that B.B.s removal was for some reason other than what was provided by the statute is inadmissible as a legal conclusion, a matter reserved for the court, and based on inadmissible hearsay. To the extent Mr. Watson holds himself out as an expert, he was not identified as an expert during discovery. He also describes himself as a former employee. He did not attest that he knows how removals were handled during the relevant time period, except to say that he had a hearsay conversation with someone at the School Board. Broughton has not come forward with admissible evidence raising a genuine issue of material fact whether the removal was causally connected to the protected activity. Accordingly, it is hereby ORDERED: 1. The defendant School Boards objections to portions of the affidavits of Craig are

Broughton, Thelma Roby, Karen Broughton, and Jerome Watson (doc. 98) SUSTAINED. 2.

The defendant School Boards second motion for summary judgment (doc.

84) is GRANTED. 3. The Clerk shall enter final judgment in favor of defendant School Board and

against plaintiff, Karen Broughton.

DONE AND ORDERED this 25th day of September, 2012.

s/

M. Casey Rodgers

M. CASEY RODGERS CHIEF UNITED STATES DISTRICT JUDGE

Case No. 3:10cv285/MCR/CJK