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Brown v. Board of Education

United States District Court, W.D. Tennessee, Western Division

July 1, 2014

KIM BROWN, Plaintiff,
v.
BOARD OF EDUCATION OF THE SHELBY COUNTY SCHOOLS, Defendant

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Kim Brown, Plaintiff, Pro se, Memphis, TN.

For Board of Education of the Shelby County Schools, Defendant: Jennifer Hinds Collins, LEAD ATTORNEY, Cecilia Suzette Barnes, SHELBY COUNTY SCHOOLS, Office of General Counsel, Memphis, TN.

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REPORT AND RECOMMENDATION ON THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND ON PLAINTIFF'S CROSS MOTION FOR SUMMARY JUDGMENT

Diane K. Vescovo, United States Magistrate Judge.

On July 31, 2013, Kim Brown (" Brown" ) filed a 30-page pro se employment discrimination complaint against the defendant, the Shelby County Schools Board of Education (" SCBOE" ), alleging gender discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. , as well as various

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state law claims.[1] (Compl., ECF No. 1.) The complaint sets forth sixteen counts and seeks injunctive relief, compensatory damages, punitive damages, and attorney's fees. ( Id. ) The case has been referred to the United States Magistrate Judge for management and for all pretrial matters for determination and/or report and recommendation as appropriate. (Admin. Order 2013-05, Apr. 29, 2013.)

Now before the court is the March 24, 2014 motion for summary judgment filed by the SCBOE, seeking judgment as a matter of law on all counts. (Def.'s Mot. for Summ. J., ECF No. 12.) On April 28, 2014, Brown filed a response in opposition and a cross-motion for summary judgment on his Consolidated Omnibus Budget Reconciliation Act (" COBRA" ) claim. (Pl.'s Resp. in Opp'n to Def.'s Mot for Summ. J., ECF No. 43.) The SCBOE replied on May 8, 2014 and opposed Brown's cross-motion for summary judgment. (Def.'s Reply, ECF No. 48.) For the reasons set forth below, it is recommended that the SCBOE's motion for summary judgment be granted in part and denied in part and that Brown's cross-motion for summary judgment be denied.

I. PROPOSED FINDINGS OF FACT

A. Standard for Establishing Facts as Disputed or Undisputed Under Rule 56

Under Rule 56(c)(1) of the Federal Rules of Civil Procedure, which governs motions for summary judgment, " [a] party asserting that a fact cannot be or is genuinely disputed must support the assertion" in one of two ways:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). Rule 56.1 of the Local Rules further explains that each party, whether the moving party or the non-moving party, must support their assertions of fact by specific citation to the record. Local Rule 56.1(a), (b). When the non-movant disputes a fact offered by the movant in its statement of material facts, the non-movant must likewise support each disputed fact by specific citation to the record. Local Rule 56.1(b). Additionally,

the non-movant's response may contain a concise statement of any additional facts that the non-movant contends are material and as to which the non-movant contends there exists a genuine issue to be tried. Each such disputed fact shall be set forth in a separate, numbered paragraph with specific citations to the record supporting the contention that such fact is in dispute.

Id.

Affidavits or declarations submitted as exhibits in support of a motion for summary judgment or a response in opposition to a motion for summary judgment have specific requirements under Rule 56 of the Federal Rules of Civil Procedure. Rule 56(c)(4) provides that such materials " must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." These requirements are mandatory.

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Charles Alan Wright et al., 10B Federal Practice and Procedure § 2738 (3d ed. 1998).

Brown disputes a number of the SCBOE's material facts and also sets forth forty-two additional material facts. ( See Pl.'s Resp. to Def.'s Statement of Undisputed Facts, ECF No. 40; Pl.'s Additional Statement of Undisputed Facts, ECF No. 41.) In some instances, Brown properly supports his dispute of facts and statement of additional material facts with specific citation to the record. In other instances, Brown merely cites to his own sworn declaration generally, attached as Exhibit 1 to his response in opposition to the SCBOE's motion for summary judgment. ( See Pl.'s Resp. to Def.'s Statement of Undisputed Facts, ECF No. 40; Pl.'s Additional Statement of Undisputed Facts, ECF No. 41; see also Brown Decl., ECF No. 43-1.) Brown's fifty-three paragraph declaration to which he refers contains some testimony that is based on personal knowledge and would be admissible in evidence and some testimony that does not satisfy the requirements of Rule 56(c)(4).

Pro se litigants are not exempt from the requirements of the Federal Rules of Civil Procedure, Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989), nor is the court required to ferret out evidence in the record to support Brown's disputed facts or additional material facts, see Young Bok Song v. Gipson, 423 F.App'x 506, 510 (6th Cir. 2011)(" [W]e decline to affirmatively require courts to ferret out the strongest cause of action on behalf of pro se litigants. Not only would that duty be overly burdensome, it would transform the courts from neutral arbiters of disputes into advocates for a particular party." ).

Therefore, to the extent Brown supports his assertions by specific citation to the record, the court will consider the fact genuinely disputed. Likewise, to the extent that Brown's declaration sets forth facts based on personal knowledge and that would be admissible in evidence in compliance with Rule 56, the court will consider the declaration as proper support.

B. Undisputed Facts Underlying Brown's Action

The following facts are undisputed for purposes of this summary judgment motion:

The SCBOE hired Brown in October of 2001 as a substitute teacher. (Def.'s Statement of Undisputed Material Facts ¶ 1, ECF No. 12-1.) In August of 2002, Brown became a full-time employee of the SCBOE, and since that time, he has worked at ten different schools during his career. ( Id. ¶ 2.) He has been transferred both voluntarily and administratively during his employment with the SCBOE. Brown claims that the reason he changed locations so frequently is that he wanted to see the inner-workings of many schools in the school district, he enjoyed teaching at a different school every year, and he was thinking of writing a book. ( Id. ¶ 3.)

Brown was suspended and ultimately terminated from employment as a teacher with the SCBOE after the 2012-2013 school year. ( Id. ¶ 15.) His last year of teaching prior to his suspension and termination was spent at Charjean Elementary School for the 2012-2013 academic year, where Tameka Allen (" Allen" ) acted as the principal for that year and remains in that position to date. ( Id. ¶ ¶ 4-5.) Brown's 2011-2012 school year was spent at Treadwell Elementary School, where he was supervised by Kenia Coleman (" Coleman" ). ( Id. ¶ 6.)

Teacher Effectiveness Measure (" TEM" ) scores are used to evaluate the performance level of teachers and range from a score of 1 ...


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