Mize v. Jefferson City Board of Education

                    United States Court of Appeals,

                               Eleventh Circuit.

                                 No. 95-8793.

                    Donna MIZE, Plaintiff-Appellant,

                                        v.

  The JEFFERSON CITY BOARD OF EDUCATION; Donald O. Rooks, Dr.,
individually and in his official capacity as Superintendent; Lois
DeWeese, individually and in her official capacity as former
Principal of Jefferson City Elementary School, Defendants-
Appellees.

                                Aug. 29, 1996.

Appeal from the United States District Court for the Northern
District of Georgia. (No. 2:94-CV-32-WCO), William C. O'Kelley,
Judge.

Before KRAVITCH and CARNES, Circuit Judges, and HILL, Senior
Circuit Judge.

      KRAVITCH, Circuit Judge:

      In this § 1983 action against the Jefferson City Board of

Education and Jefferson City school officials, Donna Mize alleges

that she was fired in retaliation for comments she made concerning

the disciplinary treatment of one of her students, in violation of

her     rights   under   the    First    Amendment    and   §   504   of   the

Rehabilitation Act of 1973.        We agree with the district court that

Mize has failed to present evidence sufficient to demonstrate that

her discharge was based on her statements.           Accordingly, we affirm

the grant of summary judgment in favor of defendants.

                                        I.

      Mize was employed as an untenured special education teacher in

the Jefferson City, Georgia school system during the 1991-92 school

year.     This was her third year of employment in a program that

provided teachers for children with mental disabilities in three
school districts.     The program was supervised by Dr. Susan Galis,

special education director for the Jefferson City School System and

the Commerce City School System, and Melanie Brittain, special

education director for the Jackson County School District. 1              The

two individual defendants in this case are Dr. Lois DeWeese,

principal of Jefferson City Elementary School, and Dr. Donald

Rooks, superintendent of the Jefferson City Board of Education.

     As an untenured employee, Mize was employed for a renewable

one-year term.      According to appellees, Mize's contract was not

renewed because her performance was inadequate.             This claim is

supported by considerable evidence. At the beginning of the school

year,    Brittain   had   received   complaints   from     one   of    Mize's

paraprofessional teaching aides about the lack of structure in

Mize's classroom and Mize's propensity to take long breaks and

lunches.     After a meeting between Mize and Brittain prompted by

these complaints, Brittain, DeWeese, and Galis directed a memo to

Mize in September 1991 setting forth guidelines for managing her

class.     According to Galis, she had never before had to write a

memo to a teacher in order to get that teacher to impose the

necessary    structure    and   organization   reflected    in   the    memo.

Furthermore, defendants claim that Mize failed to follow the

directives of this memo and that her teaching continued to be

inadequate.     Galis also testified that based on many visits to

Mize's classroom she felt that Mize was not adequately attending to

the needs of her students.         This testimony was corroborated by


     1
      Jefferson City, Commerce City and Jackson City school
systems were involved in a "shared services" program.
Brittain who stated that, in light of the problems in Mize's

classroom, she had agreed to provide a parent with "home-based"

services after that parent expressed complaints about the lack of

structure in Mize's classroom.

      In October 1991, Galis—after a meeting that included Mize,

DeWeese, Brittain and herself—requested that an outside consultant,

Lynda Hale, observe Mize's classroom and provide constructive

advice.   Hale concluded that Mize was focusing on teaching skills

that were inappropriate for students with the level of disability

of those in the class and that Mize was a "poor" teacher.

      Hale's conclusions were presented to Dr. Galis prior to March

6.   On March 6, after already discussing Mize with Brittain, Galis

met with Rooks to discuss the renewal of contracts of special

education teachers in the shared instruction program.     Galis and

Rooks both testified at their depositions that Galis verbally

recommended to Rooks that Mize's contract not be renewed.     Rooks

testified that he concurred with Galis's recommendation and made

the decision at that time not to rehire Mize.   On April 3, 1992, in

a meeting with DeWeese, Rooks told the principal that he was not

going to renew Mize's contract.   Later that same day, DeWeese told

Mize that she would not be rehired.

      Mize relates a different story of Rooks's decision not to

renew her contract. She claims that Rooks's decision not to rehire

her did not occur until April 3 and that it was based on the

recommendation of DeWeese, which was made in retaliation for

statements made by Mize.    The statements concerned the following

incident:   On February 27, 1992, Mize returned from lunch to find
that a paraprofessional had placed a severely mentally disabled

five-year-old       boy   in     a    "time-out    room"    (i.e.,      a   closet)   as

punishment for urinating on himself. Mize learned that DeWeese had

told the paraprofessional that it was acceptable to place the

student    in   that      room       if   it   appeared    that   he    had     urinated

intentionally. Mize approached DeWeese the following day about the

incident, and DeWeese admitted that she had approved of this

disciplinary method.        A few days later, Mize sent a letter to Rooks

complaining about the use of "time-out rooms," and she met with him

on   March   6,     the   same       day   that   Rooks    had    received       Galis's

recommendation not to renew Mize's contract. Although occurring on

the same day, Rooks's meeting with Mize occurred after his meeting

with Galis.        At the meeting with Mize, Rooks appeared troubled by

DeWeese's approach.         Afterwards, he investigated the allegations

and sent a memo to DeWeese prohibiting the use of "time-out rooms."

      Despite Rooks's agreement with Mize that the use of "time-out

rooms" was inappropriate, Mize alleges that she was fired in

retaliation for her comments concerning the incident in which a

student was confined after urinating on himself.                     She argues that

Galis played no role in the decision not to renew her contract and

that the argument that she was not rehired because of her poor

performance is pretextual.                Rather, Mize alleges that Rooks made

his decision at the April 3 meeting with DeWeese to discuss the

school's personnel. She contends that DeWeese demanded that Mize's

contract not be renewed and that Rooks acceded to this demand.                        In

sum, Mize argues that the defendants' contention that Rooks's

decision     was    based      on    Galis's    recommendation         is   a   post-hoc
justification for what was, in fact, a retaliatory act by DeWeese.

                                      II.

     In deciding a claim of First Amendment retaliatory discharge,

a court looks to "(1) whether the employee's speech involves a

matter of public concern, (2) whether the employee's interest in

speaking    outweighs     the    government's    legitimate    interest      in

efficient     public   service,     (3)    whether   the   speech   played   a

substantial     part    in    the   government's     challenged     employment

decision, and (4) whether the government would have made the same

employment decision in the absence of the protected conduct."

Beckwith v. City of Daytona Beach Shores, 58 F.3d 1554, 1563-64

(11th Cir.1995) (citing Bryson v. City of Waycross, 888 F.2d 1562,

1565-66 (11th Cir.1989)).

      The third element of the "Bryson" test asks whether there is

a "substantial" casual link between the employee's speech and the

adverse employment decision.              Where causation is lacking, an

employee's claim of retaliatory discharge must fail and it is

unnecessary to consider the other three elements.              Beckwith, 58

F.3d at 1564.    Likewise, a claim under § 504 of the Rehabilitation

Act of 1973, 29 U.S.C. § 794, for retaliatory discharge, will also

fail if the evidence is insufficient as a matter of law to prove a

causal nexus between retaliatory motive and the adverse employment

decision.   C.f. Morgan v. City of Jasper, 959 F.2d 1542, 1547 (11th

Cir.1992) (A necessary element in establishing a prima facie case

of retaliatory discharge under Title VII is a "causal connection

between the protected activity and the adverse employment action."

(citation omitted)).         It is to the issue of causation that we now
turn.

        The district court, viewing the evidence in the light most

favorable to the appellant, held that there was no genuine issue of

material fact on the issue of causality.          That is, as a matter of

law, the proffered evidence was insufficient for a jury to find

that the decision not to renew Mize's contract was motivated by a

desire to retaliate in response to her expression.             We review the

district court's summary judgment order de novo, applying the same

legal   standard   employed   by     the   district    court   in    the   first

instance.   Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913,

918 (11th Cir.1993).

        The district court must enter an order of summary judgment

when, taking the facts in the light most favorable to the nonmoving

party, there is "no genuine issue as to any material fact."

Fed.R.Civ.P. 56(c).      Where the nonmoving party has failed to make

a sufficient showing "to establish the existence of an element

essential to that party's case, and on which that party will bear

the burden of proof at trial," there exist no genuine issues of

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106

S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).              "Genuine disputes are

those in which the evidence is such that a reasonable jury could

return a verdict for the non-movant.           For factual issues to be

considered genuine, they must have a real basis in the record."

Hairston, 9 F.3d at 919 (citations omitted).

        Where the non-movant presents direct evidence that, if

believed by the jury, would be sufficient to win at trial, summary

judgment    is   not   appropriate    even   where    the   movant    presents
conflicting      evidence.        It     is   not    the    court's    role   to    weigh

conflicting evidence or to make credibility determinations;                           the

non-movant's evidence is to be accepted for purposes of summary

judgment.       See, e.g., Beckwith, 58 F.3d at 1564;                      Hairston v.

Gainesville Sun Publishing Co., 9 F.3d at 918;                       T.W. Elec. Serv.,

Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630-32 (9th

Cir.1987).

         Likewise, all inferences drawn from the evidence must be

viewed    in    the    light     most    favorable     to    the     nonmoving     party.

Isenbergh v. Knight-Ridder Newspaper Sales, Inc., 84 F.3d 1380,

1383 (11th Cir.1996).          Nevertheless, there is a difference between

direct evidence and inferences that may permissibly be drawn from

that evidence.         Where a non-movant presents direct evidence that

creates a genuine issue of material fact, the only issue is one of

credibility;          thus, there is no legal issue for the court to

decide. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253-55, 106

S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986) (credibility determinations

are a jury function).            A court need not permit a case to go to a

jury,    however,      when    the      inferences    that    are     drawn   from    the

evidence, and upon which the non-movant relies, are "implausible."

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

592-94, 106 S.Ct. 1348, 1359, 89 L.Ed.2d 538 (1986) (noting that in

the context of anti-trust actions, the Court has "emphasized that

courts should not permit factfinders to infer conspiracies [to

engage in anti-competitive activity] when such inferences are

implausible ..." (quoting Monsanto Co. v. Spray-Rite Service Corp.,

465   U.S.     752,    762-64,    104     S.Ct.     1464,    1470,    79   L.Ed.2d    775
(1984)));   see also Anderson, 477 U.S. at 253-55, 106 S.Ct. at 2513

(all justifiable inferences are to be drawn in non-movant's favor).

Where the evidence is circumstantial, a court may grant summary

judgment when it concludes that no reasonable jury may infer from

the assumed facts the conclusion upon which the non-movant's claim

rests.    The Ninth Circuit has stated the point clearly:

     Inferences must ... be drawn in the light most favorable to
     the nonmoving party....       Inferences may be drawn from
     underlying facts that are not in dispute, such as background
     or contextual facts ... and from underlying facts on which
     there is conflicting direct evidence but which the judge must
     assume may be resolved at trial in favor of the nonmoving
     party.   Assuming the existence of these underlying facts,
     however, an inference as to another material fact may be drawn
     in favor of the nonmoving party only if it is "rational" or
     "reasonable" and otherwise permissible under the governing
     substantive law.

                        .    .    .    .    .

          If the nonmoving party produces direct evidence of a
     material fact, the court may not assess the credibility of
     this evidence nor weigh against it any conflicting evidence
     presented by the moving party. The nonmoving party's evidence
     must be taken as true. Inferences from the nonmoving party's
     "specific facts" as to other material facts, however, may be
     drawn only if they are reasonable in view of other undisputed
     background or contextual facts and only if such inferences are
     otherwise permissible under the governing substantive law.
     This inquiry ensures that a "genuine" issue of material fact
     exists for the factfinder to resolve at trial.

T.W. Elec. Serv. Inc., 809 F.2d at 631 (citations omitted).

     In its motion for summary judgment, appellees had the initial

burden of demonstrating to the district court that based on the

pleadings, depositions, answers to interrogatories, and admissions,

there existed no genuine issues of material fact. Hairston, 9 F.3d

at 918.     Appellees have met this initial burden through the

testimony of Rooks and Galis that it was their decision not to

renew Mize's contract, Rooks's statement that he made the final
decision not to rehire Mize prior to his meeting with DeWeese,

memoranda indicating that Mize was ineffective in running her

classroom, and Hale's testimony that Mize was not a competent

teacher.      This evidence is sufficient to shift the burden to Mize

to demonstrate that there remain genuine issues of material fact.

      Specifically, Mize must present evidence sufficient for a

reasonable jury to infer that Rooks and Galis were lying and that

the decision not to renew Mize's contract was the result of Rooks

acceding to DeWeese's alleged desire to retaliate.           In support of

this argument, Mize relies on the following:            (1) several months

before Galis's alleged conversation with Rooks, Galis told a parent

that Mize would be returning the next year, (2) according to Mize,

Galis expressed surprise upon hearing that Mize would not be

rehired, (3) DeWeese's statement to Mize that the decision not to

renew her contract was not based on her performance, (4) Rooks's

statement to Mize that there had been no complaints to him about

her performance, (5) the temporal proximity of her disagreement

with DeWeese and the decision not to renew her contract, and (6) at

the   April    3   meeting   to   review   personnel,   DeWeese   allegedly

recommended that Mize not be rehired.

      Based on these alleged facts, Mize contends that there is a

genuine issue of material fact as to whether she was fired in

retaliation for her statements regarding the use of "time-out

rooms." Although she presents no direct evidence, Mize argues that

from the circumstantial evidence presented, a jury could conclude

that Galis and Rooks concocted their story and that what in fact

happened was that Rooks decided not to renew Mize's contract
because of Mize's opposition to DeWeese's method of disciplining a

student.

      Although Mize presented evidence of the type that in some

situations could create a genuine issue of material fact, in the

context of this case, the evidence she adduces is insufficient, as

a matter of law, for a finding of liability.       See Beckwith, 58 F.3d

at 1564 ("It is neither possible nor desirable to fashion a single

standard for determining when an employee has met her initial

burden     of   demonstrating    that   a   retaliatory   intent      was   a

"substantial' or "motivating factor' behind a government employment

decision."       (citations    omitted)).    No   reasonable   jury    could

conclude that Rooks based his decision not to renew Mize's contract

on anything other than his belief that she was not qualified to

continue in her position as a special education teacher.

      We consider first Galis's comments.         Given the context and

factual background of this case, no reasonable jury could conclude

that Galis was fabricating her story based merely on the fact that

two months prior to her conversation with Rooks she told a parent

that Mize would return next year.       Neither could such an inference

be drawn from the assumed fact that Galis had told Mize, after the

latter had learned her contract would not be renewed, that she was

unaware that she had not been rehired for the next year.           To make

the   inference    suggested    by   Mize   requires   stripping   Galis's

statements from the context in which they were made:           the comment

to the parent was made several months before any decision had been

reached about Mize's contract and both conversations occurred in

the presence of Mize. Galis's statements suggest nothing more than
a desire to avoid an awkward situation.       Although other inferences

are   not   impossible,   "[t]he   mere   existence   of    a   scintilla   of

evidence in support of plaintiff's position will be insufficient;

there must be evidence on which the jury could reasonably find for

the plaintiff."    Id., 477 U.S. at 252, 106 S.Ct. at 2512;         see also

T.W. Elec. Serv. Inc., 809 F.2d at 631 (court must consider

non-movant's "specific facts" along with undisputed background or

contextual facts).

      Next, the evidence proffered concerning statements made by

DeWeese and Rooks does not create a reasonable inference that Rooks

made his decision in response to pressure from DeWeese.                These

statements also must be taken out of context to yield the inference

suggested by Mize. Mize describes her conversation with DeWeese as

follows:

      I questioned her as to why [my contract was not being
      renewed], could she tell me why and she said no, that she did
      not have to tell me why. I said—she told me it had nothing to
      do with my teaching performance, that she had not received
      complaints, but that she didn't have to give me a reason why.

Deposition of Donna Mize at 216.

      Rooks's statement occurred when Mize met with him to him to

discuss the decision not to renew her contract.            Mize recounts the

conversation as follows:

      Q: What do you recall being said in your conversation with Dr.
      Rooks?

      A [by Mize]: I told him I was there to see—that I had just
      been told that I was not—that Dr. DeWeese was not recommending
      me for reemployment and asked him if he'd give me a reason and
      he told me no, he did not have to give me a reason.

           I made the comment, "But don't you think it's only fair
      that if you're going to fire me then tell me why?" He said
      that it was not personal against me. He stated that he did
      not know me well enough to make judgments against me
     personally cause he had only met me the one time he stuck his
     head in the door. That he had not received complaints from
     anyone about me, that they just wanted to take a different
     approach.

     Q: Did he describe what that approach was?

     A: No. And I said, I made a comment something cause I asked
     him something about complaints. I said something about, "Dr.
     Rooks, I've never received complaints from you or Susan Galis
     or Dr. DeWeese or even any parent." And he said, "Oh, no,
     I've never received complaints about you either." He said,
     "I've never received a complaint about you."     ... I said,
     "You're not going to give me an answer?" He said no and I
     left.

Id. at 219-20.

     As with Galis's statements, although we must accept that these

conversations occurred, we need not accept the claim that they

create a reasonable inference that Rooks acted with retaliatory

intent (or implemented DeWeese's desire to retaliate) when he

decided not to renew Mize's contract.       In this case, it is

undisputed that Rooks had no motive to retaliate against Mize.   It

was DeWeese's actions about which Mize complained, not Rooks's. In

fact, Rooks agreed with Mize and followed up on her concerns by

issuing a memorandum prohibiting the use of "time-out rooms."    In

order to link a retaliatory motive to Rooks, Mize argues that he

was a weak-willed supervisor who acceded to DeWeese's demand that

he retaliate on her behalf.   For Mize to prevail, a juror must be

able reasonably to infer from the statements discussed above that

DeWeese forced Rooks to retaliate against Mize because DeWeese

resented the fact that Mize complained to Rooks himself about

activity that Rooks agreed was inappropriate. Although this is not

an impossible scenario, it is not one that is supported by the

facts presented to the district court.    See Anderson v. Liberty
Lobby, Inc., 477 U.S. at 249-50, 106 S.Ct. at 2511 ("If the

evidence is merely colorable, or is not significantly probative,

summary judgment may be granted."        (citations omitted)).

     The hemming and hawing by DeWeese and Rooks when confronted by

Mize may have denied her a clear answer as to why she was fired,

but the statements do not demonstrate that she was denied her

constitutional and statutory rights.           There is simply not enough

evidence to move from the statements made by defendants to the

conclusion that Rooks implemented DeWeese's will.

     We next consider whether the temporal proximity of Mize's

complaint about "time-out rooms" to the time she was informed of

the decision not to renew her contract creates an inference of

retaliation. Where termination closely follows protected activity,

it is usually reasonable to infer that the activity was the cause

of the adverse employment decision. See, e.g., Bechtel Constr. Co.

v. Secretary of Labor, 50 F.3d 926, 934 (11th Cir.1995) (inference

permissible   where     employee   questioned       safety   procedures   in

radiation control area of plant).         It does not follow, however,

that every time a person engages in constitutionally protected

activity   within   a   short   time   prior   to   an   adverse   employment

decision that an inference may reasonably be drawn that they were

related.   Every act of expression is not equally as likely to draw

a negative response from an employer as every other;           for the link

to be made, it must be reasonable to assume that the employer had

cause to retaliate. There is no reasonable evidence that Rooks had

any reason to retaliate against Mize;               in fact, he took her

complaint seriously, going so far as to prohibit the use of
"time-out rooms." Taking the evidence in the context of the entire

case, the fact that the adverse employment decision took place

shortly after Mize's complaint does not, by itself, permit a

reasonable inference that Rooks's decision was motivated by a

desire to retaliate.

     Finally, because there is no reasonable basis for rejecting

Rooks's testimony that he made the decision on March 6 not to renew

Mize's   contract,   it   is   irrelevant   that   DeWeese   subsequently

recommended that Mize's contract not be renewed.

     Considering the evidence relied upon by Mize in the context of

all the facts presented on summary judgment, interpreted in the

light most favorable to Mize, we conclude that she failed to

present evidence from which a reasonable jury could find that she

was fired in retaliation for her statements.2 Accordingly, summary

judgment in favor of defendants was appropriate.

     AFFIRMED.




     2
      Because we hold that Mize has failed to present evidence
sufficient for a reasonable jury to find that the decision not to
renew her contract was based on her statements, we need not reach
the other three elements of the "Bryson" test. Specifically, we
do not reach the issue, decided by the district court, of whether
Mize's statements addressed an issue of "public concern."

          Also, we note that in holding that there is
     insufficient evidence, we are not questioning "the settled
     rule that the inherent difficulty of proving discriminatory
     intent often requires reliance on circumstantial evidence."
     Beckwith, 58 F.3d at 1566. We hold only that the evidence
     in this case permits no inference that would create a
     genuine issue of material fact.