Moore v. Cobb Cnty. Sch. Dist.
| Decision Date | 02 June 2021 |
| Docket Number | Civil Action 1:19-CV-4174-MLB-WEJ |
| Parties | ELLENA MOORE, Plaintiff, v. COBB COUNTY SCHOOL DISTRICT, Defendant. |
| Court | U.S. District Court — Northern District of Georgia |
FINAL REPORT AND RECOMMENDATION
Plaintiff Ellena Moore, alleges that her former employer, Cobb County School District (the “District”), interfered with her ability to take medical leave and retaliated against her for doing so in violation of the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq. ; discriminated against her based on her disabilities and retaliated against her for engaging in protected activity in violation of the Americans with Disabilities Act (“ADA”), as amended by the Americans with Disabilities Act Amendments Act (“ADAAA”), 42 U.S.C. § 12101 et seq., and in violation of Section 504 of the Rehabilitation Act of 1973 (“Rehab Act”) 29 U.S.C. § 701 et seq. (Compl. Counts Three & Four ¶¶ 89-108); retaliated against her for engaging in protected activity in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981 (Compl. Count Five, ¶¶ 109-13); and retaliated against her for complaining about discrimination in violation of Title VI of the Civil Rights Act of 1964 (“Title VI”), 42 U.S.C. § 2000d et seq., and 42 U.S.C § 1981 (Compl. Count Six, ¶¶ 114-21).
This matter is before the Court on Defendant's Motion for Summary Judgment [58]. For the reasons explained below, the undersigned RECOMMENDS that Defendant's Motion for Summary Judgment [58] be DENIED IN PART and GRANTED IN PART.
In support of its Motion for Summary Judgment, defendant as movant filed a Statement of Undisputed Material Facts (“DSMF”) [58-2]. See N.D.Ga. Civ. R. 56.1(B)(1). As required by Local Civil Rule 56.1(B)(2)(a), plaintiff submitted a response to those proposed facts. (See Pl. Resp. to DSMF [61-1] (“R-DSMF”).) Further, as allowed by Local Civil Rule 56.1(B)(2)(b), plaintiff submitted her own statement of additional material facts. (See Pl. Statement of Add'l Material Facts [61-2] (“PSAF”).) As required by Local Civil Rule 56.1(B)(3), defendant submitted a response. (See Def. Resp. to PSAF (“R-PSAF”) [66].)
The Court uses the parties' proposed facts and responses as follows. Where one side admits a proposed fact, the Court accepts it as undisputed for purposes of this Motion and cites only the proposed fact. Where one side denies a proposed fact, the Court reviews the record cited and determines whether a fact dispute exists. If the denial is without merit, and the record citation supports the proposed fact, then the Court deems it admitted and includes it herein. The Court sometimes modifies a proposed fact based on the record cited in the opposing party's response. Finally, the Court excludes immaterial facts, [1] includes some facts from its own review of the record, see Fed.R.Civ.P. 56(c)(3), and considers all proposed facts in light of the standards for summary judgment, set out infra Part II.
The District operates more than 144 schools and employs over 13, 000 people. (DSMF ¶ 1.) The District employed plaintiff (African American) as a teacher at East Cobb Middle School (the “School”) for the 2015-2016, 2016-2017, [2] and 2017-2018 school years. (Id., as modified by R-DSMF ¶ 1; see also Moore Dep. of Nov. 4, 2020 [77] 28.)[3] The District also employed Leetonia Young (African American) as the principal of East Cobb Middle School (the “School”). (Young Decl. [58-3] ¶ 2; Moore Dep. of Nov. 4, 2020 [77] 49-50.)
In an effort to ensure consistency and comparability for evaluating teachers across Georgia, the Georgia Department of Education (the “GADOE”) implemented a common evaluation system for all teachers called the Teacher Keys Effectiveness System (“TKES”). (DSMF ¶ 5.)[4] The overarching goal of TKES is to support the continuous growth and development of each teacher by monitoring, analyzing, and applying pertinent data compiled within a system of meaningful feedback. (Id. ¶ 6.)
TKES consists of multiple components that contribute to a teacher's overall evaluation, including the Teacher Assessment on Performance Standards (“TAPS”) which provide evaluators with a qualitative, rubrics-based evaluation method by which they can measure teacher performance related to quality performance standards. (DSMF ¶ 7.) Teachers are evaluated and rated on how well they perform in ten different performance standards: Professional Knowledge, Instructional Planning, Instructional Strategies, Differentiated Instruction, Assessment Strategies, Assessment Uses, Positive Learning Environment, Academically Challenging Environment, Professionalism, and Communication. (Id. ¶ 8.)[5] The GADOE mandates that evaluators conduct at least two formal observations and four walkthroughs, or frequent brief observations, of teachers with feedback provided to the evaluated teacher and with teachers responsible for submitting documentation, including lesson plans, as requested by the evaluator. (Id. ¶ 9.)[6]
In making judgments for the end of the year Summative Assessment on each of the ten performance standards, the evaluator is directed to determine where “the totality of the evidence and most consistent practice” exists based on observations and documentation provided by the teacher for the entire evaluation period, not just a particular lesson or snapshot in time. (DSMF ¶ 10[7]; see also id. ¶ 20.[8]) The Summative Assessment takes into consideration all previous evaluations; thus, earlier ratings affect the summative rating. (PSAF ¶ 5; see also Young Dep. [80] 48-53.)[9] If a teacher earns an overall rating of a Level I or II on their end of the year Summative Assessment, the GADOE defines this rating as “not proficient” and the CCSD may not offer that teacher a contract for the following school year. (DSMF ¶ 11.)
On March 24, 2017, Ms. Mitchell (an assistant principal) issued a letter of direction to plaintiff regarding excess absenteeism for the 2016-2017 school year. (DSMF ¶ 24; Moore Dep. of Nov. 4, 2020, Ex. 2 [77-3]; Young Dep. [80] 80-81.)[10] The letter's introductory paragraph states as follows:
As we discussed during the conference, you had taken a total of 9.25 days of short[-]term leave since July 25, 2016. As of March 21, 2017 you are at or nearing the level of absenteeism that is considered unacceptable, in that it poses an undue hardship on your coworkers and the entire department. The instruction you provide to students is critical to student achievement, and prompt and regular attendance is part of the essential functions of your job duties.
(Moore Dep. of Nov. 4, 2020, Ex. 2 [77-3].) The letter also states that “[a]bsences in excess of six and one-half (6.5) days within a fiscal year for 180-189 day employees, seven (7) for 190-194 day employees, eight (8 for 210-239 day employees), nine (9 for 240-260 day employees) may result in corrective action consistent with progressive discipline.” (Id.) The letter instructs plaintiff to improve her attendance in general and admonishes her that failure to improve attendance and/or any other misconduct may result in further disciplinary action up to and including termination. (Id.)
Plaintiff does not recall receiving a copy of the letter but did have a conversation with Ms. Mitchell about her absences during the 2016-2017 school year. (Moore Dep. of Nov. 4, 2020 [77] 82-84.) According to plaintiff, when Ms. Mitchell asked her about the absences, she told her the reasons for most of them, and Ms. Mitchell replied, “That was fine and that was just a formality and that was the end of it.” (Id. at 84.)
At the end of the 2016-2017 school year, plaintiff complained to Ms. Young about the treatment of three African-American students by specific teachers at the School, but at no time complained about discrimination against any School employees. (DSMF ¶ 25; Moore Decl. [82-1] ¶ 3; see also Moore Dep. of Nov. 5, 2020, Ex. 16 [78-8].) Two of the incidents involved three Caucasian teachers surrounding and scolding a single African-American student in the hallway (one boy and one girl on separate occasions). (Moore Decl. [82-1] ¶ 3; Moore Dep. of Nov. 4, 2020 [77] 42-49; Moore Dep. of Nov. 5, 2020, Ex. 16 [78-8].) According to plaintiff, she also complained to Ms. Young that a Caucasian teacher told an African-American student something to the effect of: “This is why y'all are getting shot by the police now, because you don't know how to do something the first time you are asked.” (PSAF ¶ 1, as modified by R-PSAF ¶ 1; Moore Decl. [82-1] ¶ 3; Moore Dep. of Nov. 5, 2020, Ex. 16 [78-8]; see also Young Dep. [80] 27-27.) Plaintiff asked Ms. Young if the staff could have ethnicity training for the next school year so “staff members could better communicate with each other as well as [] students and kind of understand where everybody's coming from a little better.” (R-DSMF ¶ 25, quoting Moore Dep. of Nov. 4, 2020 [77] 49; see also DSMF ¶ 27, as modified by R-DSMF ¶ 27.)[11]
Plaintiff also asked Assistant Principal Dreina Gary-Robinson (African-American) for her support to have ethnicity training and she stated that she would talk to Ms. Young about it. (DSMF ¶ 27, as modified by R-DSMF ¶ 27; see also Moore Dep. of Nov. 4, 2020 [77] 49.) According to plaintiff, she believed that ethnicity training would address (Moore Dep. of...
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