United States District Court, M.D. Georgia, Columbus Division
D. LAND, CHIEF U.S. DISTRICT COURT JUDGE
Powell claims that his employer, the Muscogee County School
District, retaliated against him for complaining of racial
discrimination, in violation of 42 U.S.C. § 1981,
for reporting that a teacher failed to inform him that a
student had been injured at school, in violation of
Georgia's Whistleblower Act, O.C.G.A. § 45-1-4.
Powell also asserted discrimination claims under § 1981
and discrimination and retaliation claims under Title VII of
the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e et seq.
School District seeks summary judgment on all of Powell's
claims. Powell does not contest summary judgment on his
§ 1981 discrimination claims or his Title VII claims, so
the School District's summary judgment motion on those
claims is granted. As discussed below, the School
District's motion is also granted as to all of
Powell's remaining claims except his Whistleblower Act
claim based on the December 2016 Reese Road Elementary and
Davis Elementary principal promotion decisions and his §
1981 retaliation claims based on the June 2017 Allen
Elementary and Rothschild Middle principal promotion
judgment may be granted only “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). In determining whether a genuine
dispute of material fact exists to defeat a motion
for summary judgment, the evidence is viewed in the light
most favorable to the party opposing summary judgment,
drawing all justifiable inferences in the opposing
party's favor. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). A fact is material if it
is relevant or necessary to the outcome of the suit.
Id. at 248. A factual dispute is genuine if
the evidence would allow a reasonable jury to return a
verdict for the nonmoving party. Id.
in the light most favorable to Powell, the parties'
citations to the record reveal the following facts.
began working for the School District as a school counselor
in August 2000. In 2008, Powell, who is black, made a
complaint of race discrimination against a white coworker.
Powell Dep. 341:10-342:3, ECF No. 29. The School
District's human resources personnel asked Powell to
remove the complaint, but he refused to do so. Id.
was promoted to assistant principal at a high school in 2011,
and he served as an assistant principal in various schools
after that. Between May 2015 and May 2016, Powell applied for
thirteen open principal positions. He was not selected for
any of them. In his response brief and sur-reply, Powell did
not argue that these decisions were retaliatory. Rather, he
clarified that his failure-to-promote Whistleblower Act
claims are based on the December 2016 principal promotion
decisions for Reese Road Elementary and Davis Elementary and
that his failure-to-promote § 1981 retaliation claims
are based on the June 2017 principal promotion decisions for
Rothschild Middle and Allen Elementary. If Powell previously
made claims based on other promotion decisions, he has
abandoned them. See Resolution Tr. Corp. v. Dunmar
Corp., 43 F.3d 587, 599 (11th Cir. 1995) (en banc)
(explaining that “grounds alleged in the complaint but
not relied upon in summary judgment are deemed
the 2016-2017 school year, Powell was an assistant principal
at AIM/Edgewood Student Services Center (“AIM”).
An AIM special education student was seriously injured after
a contract behavioral specialist repeatedly restrained him. A
teacher named Zehra Malone was present for the final
“takedown” that injured the student, and she was
aware that the student had been injured. Though Powell
checked on the student twice during the restraints, he did
not know that the student had been injured, and Malone did
not tell him. The next day, the student's mother told
Powell that the student had been seriously injured. Powell
wrote a written reprimand to Malone for failing to tell him
about the student's injuries, and he copied AIM's
principal on the letter.
December 2016, School District Chief Human Resources Officer
Kathy Tessin told Powell that he could not issue the
reprimand because only the School District's
superintendent has authority to issue an official reprimand.
She pressed Powell to rescind the letter. Powell refused.
Also in December 2016, the School District filled principal
positions at Davis Elementary and Reese Road Elementary.
Powell applied for both positions but was not selected for
David Lewis decided to demote Powell to a school counselor
position for the 2017-2018 school year, and Tessin informed
Powell of the decision on May 3, 2017. During that
meeting, Powell asked Tessin why he was not being promoted to
a principal position; since May 2015, Powell applied for at
least fifteen principal positions but was never selected for
one. Powell asserts that Tessin “clearly stated that
because [Powell] refused to remove [a 2008 race]
discrimination complaint on [a former colleague, that] is the
reason [he] wasn't being promoted.” Powell Dep.
281:4-7; accord Id. at 341:10-342:3.
Powell submitted a grievance regarding his demotion, Lewis
rescinded the demotion and informed Powell in mid-May that he
would be given an assistant principal position for the next
school year. In June 2017, Powell applied for principal
positions at Allen Elementary and Rothschild Middle but was
not selected. Instead, Powell was assigned to two elementary
schools as an assistant principal for the 2017-2018 school
year. Powell asserts that his job duties were reduced,
pointing to evidence that the principal of one school asked
him to help with some clean-up and inventory tasks at the
beginning of the 2017-2018 school year. See
Pl.'s Resp. to Def.'s Mot. for Summ. J. Ex. 17, Email
from Y. Scarborough to E. Powell (Aug. 8, 2017 at 6:56 AM),