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Brown v. Bd. of Educ.

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

September 15, 2014

KIM BROWN, Plaintiff,

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.



Before the Court is the Magistrate Judge's July 1, 2014 Report and Recommendation (the " Report" ) recommending that Defendant Shelby County Schools Board of Education's (the " SCBOE" ) March 24, 2014 motion for summary judgment be granted in part and denied in part and that Plaintiff Kim Brown's (" Brown" ) April 28, 2014 cross-motion for summary judgment be denied. (Rep., ECF No. 59.) On July 15, 2014, Brown filed a timely objection to the Report. (Obj., ECF No. 62.) For the following reasons, the Magistrate Judge's Report is ADOPTED. The SCBOE's motion for summary judgment is GRANTED in part and DENIED in part and Brown's cross-motion for summary judgment is DENIED.


This case arises out of the dismissal of Kim Brown from his teaching position with the SCBOE. (See Rep., ECF No. 59) Brown, a tenured teacher, was suspended and ultimately dismissed after the 2012-2013 school year. (Id.)

On July 31, 2013, Brown filed a pro se complaint, alleging violations of Title VII of the Civil Rights Act of 1964 (" Title VII" ), 42 U.S.C. § § 2000e, et seq., the Consolidated Omnibus Budget Reconciliation Act (" COBRA" ), 29 U.S.C. § § 1161-1168, and various Tennessee laws. (Pro Se Compl., ECF No. 1.) The parties conducted discovery, and on March 24, 2014, the SCBOE moved for summary judgment on all counts, pursuant to Federal Rule of Civil Procedure 56. (Mot. for Summ. J., ECF No. 12.) On April 21, 2014, Chief United States Magistrate Judge Diane K. Vescovo granted Brown's motion for extension of time to file a response. (Order, ECF No. 35.) On April 28, 2014, Brown filed a response in opposition and a cross-motion for summary judgment. (Pl.'s Resp. in Opp'n to Def.'s Mot for Summ. J., ECF No. 43.) Brown's cross-motion for summary judgment pertains only to his COBRA claim.[1] (Id.) On May 8, 2014, the SCBOE replied to Brown's response and responded to Brown's cross-motion for summary judgment. (Def.'s Reply, ECF No. 48.)

On July 1, 2014, the Magistrate Judge issued a report and recommendation, recommending that the Court grant the SCBOE's motion for summary judgment on all claims except Brown's COBRA claim and that Brown's cross-motion for summary judgment on his COBRA claim be denied. (Rep., ECF No. 59.) On July 15, 2014, Brown filed a timely objection to the Report. (Obj., ECF No 62.) The SCBOE filed its response to Brown's objection on July 29, 2014. (Resp., ECF No. 64.)


The Court has subject matter jurisdiction under 28 U.S.C. § 1331 because Brown raises federal questions under Title VII, 42 U.S.C. § § 2000e, et seq. and COBRA, 29 U.S.C. § § 1161-1168. The Court has supplemental jurisdiction over the remaining state law claims because they derive from a " common nucleus of operative fact." United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).


A. Pro Se Litigant Standard

" Pro se [pleadings] are to be held to less stringent standards than formal pleadings drafted by lawyers, and should therefore be liberally construed." Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011)(internal quotation marks omitted). Pro se litigants, however, are not exempt from the requirements of the Federal Rules of Civil Procedure. See Brown v. Matauszak, 415 F.App'x 608, 2011 WL 285251, at *613 (6th Cir. 2011). " While courts are properly charged with protecting the rights of all who come before it, that responsibility does not encompass advising litigants as to what legal theories they should pursue." Young Bok Song v. Gipson, 423 F.App'x 506, 2011 WL 1827441, at *510 (6th Cir. 2011).

B. Review of Magistrate Judge's Report

Congress enacted 28 U.S.C. § 636 to relieve the burden on the federal judiciary by permitting the assignment of district court duties to Magistrate Judges. See United States v. Curtis, 237 F.3d 598, 602 (6th Cir. 2001) (citing Gomez v. United States, 490 U.S. 858, 869-70, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989)); see also Baker v. Peterson, 67 F.App'x 308, 310 (6th Cir. 2003). " A district judge must determine de novo any part of a Magistrate Judge's disposition that has been properly objected to." Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1)(C). After reviewing the evidence, the Court is free to accept, reject, or modify the proposed findings or recommendations of the Magistrate Judge. 28 U.S.C. § 636(b)(1)(C). The district court is not required to review--under a de novo or any other standard--" any issue that is not the subject of an objection." Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). The district court should adopt the findings and rulings of the Magistrate Judge to which no specific objection is filed. Id. at 151.

" Overly general objections do not satisfy the objection requirement." Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir. 2006). Objections to any part of a Magistrate Judge's disposition " must be clear enough to enable the district court to discern those issues that are dispositive and contentious." Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995); see also Arn, 474 U.S. at 147 (stating that the purpose of the rule is to " focus attention on those issues . . . that are at the heart of the parties' dispute." ). " '[O]bjections disput[ing] the correctness of the magistrate's recommendation but fail[ing] to specify the findings . . . believed [to be] in error' are too general." Spencer, 449 F.3d at 725 (quoting Miller, 50 F.3d at 380). A general, frivolous, or conclusory objection will be treated as if no objection had been made. Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991); see also Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (" [T]he district court need not provide de novo review where the objections are '[f]rivolous, conclusive or general.'" (quoting Nettles v. Wainwright, 677 F.2d 404, 410 n. 8 (5th Cir.1982)).

C. Summary Judgment Standard

Under Federal Rule of Civil Procedure 56, the Court shall grant a party's motion for summary judgment " 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). The moving party can meet this burden by pointing out to the Court that the non-moving party, having had sufficient opportunity for discovery, has no evidence to support an essential element of his case. See Fed.R.Civ.P. 56(c)(1); Asbury v. Teodosio, 412 F.App'x 786, 791 (6th Cir. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

When confronted with a properly supported motion for summary judgment, the non-moving party must set forth specific facts showing that there is a genuine dispute for trial. See Fed.R.Civ.P. 56(c). A genuine dispute for trial exists if the evidence is such that a reasonable jury could return a verdict for the non-moving party. See Wasek v. Arrow Energy Servs., 682 F.3d 463, 467 (6th Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The non-moving party must " 'do more than simply show that there is some metaphysical doubt as to the material facts.'" Phelps v. State Farm Mut. Auto. Ins. Co., 680 F.3d 725, 735 (6th Cir. 2012) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). A party may not oppose a properly supported summary judgment motion by mere reliance on the pleadings. See Beckett v. Ford, 384 F.App'x 435, 443 (6th Cir. 2010) (citing Celotex Corp., 477 U.S. at 324). Instead, the non-moving party " must adduce concrete evidence on which a reasonable juror could return a verdict in [his] favor." Stalbosky v. Belew, 205 F.3d 890, 895 (6th Cir. 2000) (citations omitted); see Fed.R.Civ.P. 56(c)(1). The Court does not have the duty to search the record for such evidence. See Fed.R.Civ.P. 56(c)(3); InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989). The non-moving party has the duty to point out specific evidence in the record that would be sufficient to justify a jury decision in his favor. See Fed.R.Civ.P. 56(c)(1); InterRoyal Corp., 889 F.2d at 111.

Although summary judgment must be used carefully, it " is an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action, rather than a disfavored procedural shortcut." FDIC v. Jeff Miller Stables, 573 F.3d 289, 294 (6th Cir. 2009) (internal quotation marks and citations omitted).


Brown has objected to the Magistrate Judge's recommendations on nearly every count. The Court will analyze the effect of each objection by discussing each count individually.

A. Title VII Retaliation Claim

In Count One of his complaint, Brown alleges wrongful termination based on retaliation. (Pro Se Compl., ECF No. 62 ¶ ¶ 88-94.) To succeed on a Title VII retaliation claim, Brown must show:

(1) [he] engaged in activity protected under Title VII; (2) the defendant knew that [he] engaged in the protected activity; (3) the defendant subsequently took an adverse, retaliatory action against the plaintiff, or the plaintiff was subjected to severe or pervasive retaliatory harassment by a supervisor; and (4) the protected activity and the adverse action were causally connected.

Randolph v. Ohio Dep't of Youth Servs., 453 F.3d 724, 736 (6th Cir. 2006). If those elements are successfully established, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse action. Johnson v. Univ. of Cincinnati, 215 F.3d 561, 573 (6th Cir. 2000). If the defendant articulates a legitimate, non-discriminatory reason for the adverse action, the burden shifts back to the plaintiff to show that that reason was merely a " pretext to hide unlawful discrimination." Id.

Two activities are protected under 42 U.S.C. § 2000e-3. The statute protects an employee who " opposed any practice made an unlawful employment practice" under Title VII or " made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing" under Title VII. 42 U.S.C. § 2000e-3. Brown claims that he engaged in both protected activities.

1. EEOC Charge

Brown alleges that he filed a charge with the EEOC on June 18, 2013, and was subsequently discharged. The Magistrate Judge found that, because Brown did not file the EEOC charge until after he was suspended, received notice of his suspension, and was notified that tenure charges[2] and a recommendation of dismissal would be made to the SCBOE,[3] he could not meet his burden on the first three elements of a Title VII retaliation claim. (Rep., ECF No. 59 at 17-18.)

The Magistrate Judge also found that, even if Brown were able to meet his burden, the SCBOE has proffered legitimate, non-discriminatory reasons for his termination as a teacher. (Id. at 18.) The reasons are Brown's inefficiency and his low Teacher Effectiveness Measure (" TEM" ) scores[4] from the 2011-2012 and 2012-2013 school years. (See Branch Aff. ¶ 19, ECF No. 12-4; TEM Score, ECF No. 12-4; Allen Aff. ¶ ¶ 7-8, ECF No. 12-5; Helminski Aff. ¶ 6, ECF No. 12-6.) The Magistrate Judge found that " Brown has offered no argument or evidence beyond his own speculation" to show that the proffered reasons are mere pretext. (Rep., ECF No. 59 at 18-19.)

Brown objects by reasserting his prior argument that the SCBOE falsified his TEM scores and, therefore, that the SCBOE's proffered reasons are pretextual. (Obj., ECF No. 62. At 3.) For purposes of this claim, only the pretext issue is before the Court for de novo review.

Brown does not cite any evidence that supports his theory. He offers copies of TEM score sheets from two different dates and argues that, because the scores are different, the SCBOE must have falsified the later score sheet. (Id. at 6 (One score sheet is as of May 16, 2013, and shows a score of 3. The other score sheet is as of January 17, 2014, and shows a score of 1).) The hearing officer's Findings of Fact and Conclusions of Law explain that Brown's preliminary score for the 2012-2013 school year was a 3 and his final score was a 1. (Hr'g Officer Report, ECF No. 12-11 ¶ 13.) The evidence Brown offers corroborates the SCBOE's theory that the TEM scores changed from a preliminary score to a final score. The change in scores is not evidence of falsification. A reasonable jury could not conclude from the evidence Brown offers that the SCBOE's proffered reasons are pretextual.

Even if a jury could conclude that the proffered reasons were pretextual, Brown has not objected to the Magistrate Judge's determination that Brown could not satisfy the first three prongs of a prima facie case of Title VII retaliation.

2. Opposition Activity Claims

Brown also alleges several instances of opposition activities. He claims that he lodged complaints about child abuse and safety hazards at Charjean Elementary School. (Pro Se Compl. ¶ ¶ 89, 92, 93.) He claims that he wrote a letter to the Memphis Education Association (" MEA" ) on October 8, 2013, in which he requested an administrative transfer to another school and complained that he had been harassed by Tameka Allen (" Allen" ), the principal at Charjean Elementary. (See Req. for Admin. Transfer, ECF No. 43-8.) In his letter, Brown asserted that the harassment occurred because he was a " surplused teacher." (Id.) Brown also claims that, on January 7, 2013, he complained of gender discrimination to Chantay Branch (" Branch" ), the Director Manager of the SCBOE Department of Labor Relations. (Pl.'s Resp. in Opp'n to Def.'s Mot. for Summ. J., ECF No. 43 at 2-3; see also Pro Se Compl. ¶ 25.)

a. Abuse and Safety Hazard Opposition

To succeed on a Title VII retaliation claim, Brown must show that he engaged in activity protected under Title VII. Title VII protects against discrimination in employment on the basis of " race, color, religion, sex, or national origin." 42 U.S.C.A. § 2000e-2. The Magistrate Judge determined that " [c]hild abuse and violations of safety hazards do not fall within the purview of Title VII." (Rep., ECF No. 59 at 20-21.) Brown does not object to that finding.

b. Request for Administrative Transfer

The Magistrate Judge found that Brown's administrative transfer request did not specifically complain of gender discrimination. (Id. at 21.) Brown requested the transfer because Allen does not like " surplused" teachers and Brown was given a low TEM score because Allen is biased against " surplused" teachers. Brown did make two references to possible gender discrimination. (Req. for Admin. Transfer, ECF No. 43-8.) In his letter, Brown alleged Allen stated that, because Brown was " a man," he " shouldn't be having any discipline problems." (Id.) The letter also claimed that, on another occasion, Allen told Brown he should be on outside duty with the other men during school dismissal. (Id.)

" A person opposing an apparently discriminatory practice does not bear the entire risk that it is in fact lawful; he or she must only have a good faith belief that the practice is unlawful." Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1312-13 (6th Cir. 1989). The Magistrate Judge determined that, because Brown " could have had a reasonable, good faith belief that Allen's comments" and actions were discriminatory toward male teachers, Brown engaged in protected activity under Title VII. (Rep., ECF No. 59 at 22.)

The Magistrate Judge found that Brown was unable to satisfy the remaining elements of a prima facie case of Title VII retaliation. (Id. at 23.) The Magistrate Judge noted that, " [a]lthough Brown asserts that the SCBOE knew of his request to MEA for an administrative transfer because the MEA sent the SCBOE a copy of the letter of request, there is no evidence in the record to support this. Further, Brown has failed to offer evidence that his letter to the MEA and his termination were causally connected." (Id.)

In his objection, Brown restates his allegation that the MEA told him that a copy of the transfer request would be sent to the SCBOE. (Obj., ECF No. 62 at 7.) The Court will review de novo whether the SCBOE received a copy of the transfer request.

The only evidence Brown cites is page 13 of Allen's deposition. (Id.) Brown asked Allen whether she receives copies of complaints made to the district. (Allen Dep., ECF No. 43-24 at 14.) Allen responded that " [i]t depends," and said she did not recall receiving a copy of any grievance Brown had filed. (Id.) A reasonable jury could not conclude from the evidence that the SCBOE received a copy of the transfer request sent to the MEA.

Although Brown objects that there is a causal connection between the transfer request letter and his termination, the objection focuses solely on whether the SCBOE received a copy of the transfer request. (Obj., ECF No. 62 at 7.) Brown does not cite any evidence of a causal connection between the transfer request letter and his termination. (Id.)

c. Gender Discrimination Opposition

Brown alleges that on January 7, 2013, he told Branch he felt harassed based on his status as a surplus teacher. (See Jan. 9, 2013 Correspondence, ECF No. 43-9.) The Magistrate Judge found no evidence that Brown ever complained to Branch about gender discrimination. The evidence showed only that Brown complained of being discriminated against as a " surplus teacher." (Rep., ECF No. 59 at 24. See Branch Aff. ¶ 11, ECF No. 12-4.) The Magistrate Judge determined that Brown had failed to satisfy the first element of a prima facie case of Title VII retaliation. (Rep., ECF No. 59 at 24.)

Brown objects, but seems to misunderstand the Magistrate Judge's reasoning. (Obj., ECF No. 62 at 8.) Brown cites Sixth Circuit case law addressing the form of complaints that are the basis for retaliation claims. (Id.) The Magistrate Judge's determination did not rely on the form of the complaint to Branch, but on the lack of evidence to support Brown's assertions that he complained of gender discrimination at all. (Rep., ECF No. 59 at 24.) ...

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