Case 1:16-cv-04317-LMM Document 85 Filed 09/13/18 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

DEBORAH BODENBENDER,

Plaintiff,

v.

KINGS RIDGE CHRISTIAN CIVIL ACTION NO.

SCHOOL INC., 1:16-CV-4317-LMM-JKL

Defendant.

ORDER

This matter is before the Court on the Magistrate Judge's Report and

Recommendation ("R&R"), Dkt. No. (80], recommending that Defendant Kings

Ridge Christian School Inc.'s ("Kings Ridge") Motion for Summary Judgment

[62] be granted and that Plaintiffs Motion for Leave to File Plaintiffs Sur-Reply

(77] be denied. After due consideration, the Court enters the following Order:

I. LEGAL STANDARD

Under 28 U.S.C. § 636(b)(1), the Court reviews the Magistrate's Report and

Recommendations for clear error if no objections are filed to the report. 28 U.S.C.

§ 636(b)(1). If a party files objections, however, the district court must determine

de nova any part of the Magistrate Judge's disposition that is the subject of a

proper objection. Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b). As Plaintiff has filed
 Case 1:16-cv-04317-LMM Document 85 Filed 09/13/18 Page 2 of 10

timely objections to the Magistrate Judge's R&R, the Court reviews the

challenged findings and recommendations on a de novo basis.1

II. DISCUSSION

Plaintiff has raised fourteen objections to the Magistrate Judge's R&R.

Dkt. No. [83]. As a preliminary matter, Plaintiffs objections to the Magistrate

Judge's findings are replete with claims that the Magistrate Judge erred by

making various "credibility" determinations. See Dkt. No. [83] at 10, 11, 13.

Specifically, Plaintiff argues the Magistrate Judge wrongly resolved disputed

facts. See id. Such objections are misplaced. Upon review of the record, the Court

finds the Magistrate Judge correctly relied on the testimony provided to

determine whether a genuine issue of material fact existed-as required when

presented with a motion for summary judgment. See Johnson v. Clifton, 74 F.3d

1087, 1090 (nth Cir. 1996). Although the Court disagrees with some of the

Magistrate Judge's ultimate conclusions, to the extent Plaintiffs objections

1 Defendant contends that Plaintiffs objections are general objections entitled

only to a clear error standard of review. See Dkt. No. [84] at 5. The Court
disagrees. Plaintiff has not simply objected to the R&R in its entirety; rather,
Plaintiff has sufficiently identified the findings in the R&R to which she objects.
Compare Dkt. No. [83] at 14 ("The Magistrate Judge erred in claiming that Ms.
Kramer conducted an investigation into only the specific complaint she made
(Doc. 80, p. 49).") with United States v. Sanders, No. 3:15-cr-00010, 2015 WL
6684746, at *1 n.3 (N.D. Ga. Oct. 29, 2015) (plaintiffs statement that she merely
"objects to the magistrate's recommendations" was a general objection because it
failed to pinpoint specific findings in the R&R with which the plaintiff disagreed).

2
 Case 1:16-cv-04317-LMM Document 85 Filed 09/13/18 Page 3 of 10

challenge the Magistrate Judge's purported "credibility determinations," such

objections are without merit and are OVERRULED.

The Court reviews Plaintiffs remaining objections to the Magistrate

Judge's R&R in turn.

a. Age Discrimination

1. Direct Evidence

Plaintiff first objects to the Magistrate Judge's treatment of statements

made by former Headmaster David Rhodes and Principal Stefanie Gammage in

determining whether Plaintiff could establish a prima facie case of age

discrimination under the Age Discrimination in Employment Act ("ADEA"). Dkt.

No. [83] at 7-8. Plaintiff claims Rhodes's and Gammage's statements are direct

evidence of discrimination. Id. A plaintiff may support her claim of

discrimination under the ADEA with either direct or circumstantial evidence. See

Bradley v. Pfizer, Inc., 440 F. App'x 805, 807 (11th Cir. 2011). Direct evidence

conclusively proves that an employee was discriminated against without any

inference or presumption. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079,

1086 (11th Cir. 2004) ("[O]nly the most blatant remarks, whose intent could

mean nothing other than to discriminate on the basis of some impermissible

factor constitute direct evidence of discrimination.") (internal citation omitted).

Specifically, Plaintiff objects to the Magistrate Judge's finding that

Headmaster Rhodes's comment that "Kings Ridge was [hiring younger teachers]

because he felt like there w[ere] older teachers .. . getting ready to retire" did not

3
 Case 1:16-cv-04317-LMM Document 85 Filed 09/13/18 Page 4 of 10

constitute direct evidence because Rhodes actually stated "Kings Ridge is hiring

younger teachers over older teachers." Dkt. Nos. [So] at 25; [83] at 8. However,

Plaintiff fails to acknowledge that Rhodes was not the decisionmaker in this

case-he was simply apprised of Principal Gammage's decision. See Dkt. No.[So]

at 25. Thus, under Eleventh Circuit precedent, Rhodes's statement is not direct

evidence of discrimination. See Bradley, 440 F. App'x at 808 ("[S]tatements by

nondecisionmakers .. .are not direct evidence of improper discrimination.")

(internal citation omitted).

Plaintiff further contends the Magistrate Judge erred in refusing to find

Principal Gammage's remark that she "believed in hiring younger teachers" direct

evidence of discrimination. Dkt. No. [83] at 8-9. This statement was made to

another teacher nearly a year before Plaintiffs position was eliminated.Dkt. No.

[80] at 26. As explained in the R&R, a comment about hiring preferences made

remote in time from the conduct at issue is not direct evidence. See id.at 25; see

also Ross v. Rhodes, 146 F.3d 1286, 1291 (nth Cir. 1998). Accordingly, Plaintiffs

objections regarding direct evidence are OVERRULED.

2. Pretext

Next, Plaintiff objects to the Magistrate Judge's findings with regard to

pretext. Dkt. No. [83] at 8-16.Because Plaintiffs ADEA claim is proceeding on

the basis of circumstantial (rather than direct) evidence, the Court must apply the

McDonnell Douglas burden-shifting framework. See Kragor v.Takeda Pharms.

Am., Inc., 702 F.3d 1304, 1308 (11th Cir. 2012). Under the framework, once a

4
 Case 1:16-cv-04317-LMM Document 85 Filed 09/13/18 Page 5 of 10

plaintiff has met her initial burden of establishing a prima facie case of

discrimination, the burden shifts to the employer to demonstrate a legitimate,

nondiscriminatory reason for the adverse employment action. See id. at 130S. In

this case, Defendant asserted that Plaintiffs position was eliminated because-

following a change in the school's math curriculum-Plaintiff was unable to

maintain a full teaching schedule for five grade levels while offering sufficient

help sessions for struggling students. Dkt. No. [So] at 13. The burden then shifts

to Plaintiff to show Defendant's stated reason is pretext for discrimination. See

id. A plaintiff may establish pretext "either directly by persuading the court that a

discriminatory reason more likely motivated the employer or indirectly by

showing that the employer's proffered explanation is unworthy of credence." Id.

(quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 24S, 256 (19S1)).

The Magistrate Judge found that Plaintiff failed to raise a genuine question

of fact as to pretext for a number of reasons. See Dkt. No. [So] at 30-47. On the

record provided, the Court agrees with the Magistrate Judge's determination that

(1) Plaintiff worked as a "math specialist" and that position was eliminated; (2)

Plaintiffs personal notes and testimony from other teachers do not reveal age-

based animus2; and, (3) Defendant's selection of other candidates for the second-

2 Plaintiffs objection that the Magistrate Judge mischaracterized the content of

her personal notes misses the mark. See Dkt. No. [S3] at 9. The Eleventh Circuit
has held that a plaintiffs "own belief' is insufficient to establish pretext. King v.
Adtran, Inc., 626 F. App'x 7S9, 791 (nth Cir. 2015). Accordingly, Plaintiffs own
belief that she was discriminated against because of her age cannot provide a

5
 Case 1:16-cv-04317-LMM Document 85 Filed 09/13/18 Page 6 of 10

and third- grade positions is not evidence of pretext.3 See id. at 31, 38-40, 45-46.

However, the Court declines to adopt the Magistrate Judge's recommendation as

to pretext because Plaintiffs remaining evidence demonstrates a genuine issue of

material fact regarding the truth of Defendant's proffered reason for eliminating

Plaintiffs position and subsequently declining to rehire her.

Specifically, Plaintiff argues that (1) Rhodes's and Gammage's statements

provide circumstantial evidence of discrimination; (2) Defendant initially

provided a false reason for its decision to eliminate her position; and, (3)

Defendant's creation of a formal hiring policy after the elimination of Plaintiffs

position was a blatant post-hoc attempt to justify its decision to require her to

interview. See Dkt. No. [83] at 9-11. While the Magistrate Judge correctly noted

that-viewed in isolation-each piece of aforementioned evidence cannot

basis for inferring pretext. Likewise, the subjective beliefs of other teachers
cannot establish discriminatory animus. See id.

3 While Defendant's creation of a formal hiring policy after the elimination of

Plaintiffs position precludes summary judgement on the issue of pretext, the
Court agrees with the Magistrate Judge's determination that Plaintiff has failed to
demonstrate Defendant lacked support for its decision to hire another teacher for
the second-grade position after the competitive interview process. Dkt. No. [8] at
46. Indeed, rather than point to evidence of age-based animus during the
process, Plaintiff instead objects that she should not have had to interview for the
second-grade position at all because she taught second grade at a different school
eight years prior to her time at Kings Ridge. See Dkt. No. [83] at 3-4, 6, 15.
However, under the law of the Eleventh Circuit, a plaintiff "is not allowed to
recast an employer's proffered nondiscriminatory reasons or substitute his
business judgement for that of the employer...the employee cannot succeed by
simply quarreling with the wisdom of that reason." Chapman v. Al Transport, 229
F.3d 1012, 1030 (nth Cir. 2000).

6
 Case 1:16-cv-04317-LMM Document 85 Filed 09/13/18 Page 7 of 10

establish pretext, when presented with a motion for summary judgment the

Court must determine whether the record presents a "convincing mosaic of

circumstantial evidence that would allow a jury to infer intentional

discrimination by the decisionmaker." Smith v. Lockheed-Martin Corp., 644 F.3d

1321, 1328 (11th Cir. 2011) (internal citation omitted). Thus, the Court cannot

consider each piece of evidence in a vacuum-rather, the Court must view the

record as the sum of its parts.

Here, when viewed in its entirety and construed in a light most favorable to

Plaintiff, the record evidence raises a reasonable inference that Defendant

discriminated against Plaintiff. First, while the Magistrate Judge correctly stated

that isolated comments unrelated to an adverse employment decision are

insufficient to establish pretext, such comments must be "read in conjunction

with the entire record." Rojas v. Florida, 285 F.3d 1339, 1343 (11th Cir. 2002)

(quoting Ross v. Rhodes Furniture, Inc., 146 F.3d 1291-92 (11th Cir. 1998)).

Accordingly, Rhodes's and Gammage's statements can still constitute

circumstantial evidence of the atmosphere in which Defendant made its decisions

regarding Plaintiffs employment. See Ross, 146 F.3d at 1291.

Moreover, although an initial false reason is alone insufficient to establish

pretext, the Magistrate Judge found that Defendant never offered an explanation

for providing an initially false and inconsistent reason for eliminating Plaintiffs

position. See Dkt. No. [So] at 33; cf. Robinson v. Hoover Enters., No. 1:103-cv-

2565-TWT, 2004 WL 2792057, at *8 (N.D. Ga. Oct. 20, 2004) (employer's initial

7
 Case 1:16-cv-04317-LMM Document 85 Filed 09/13/18 Page 8 of 10

false reason did not constitute pretext because the employer later provided a

plausible explanation for offering the initial false reason). And, it is undisputed

that Defendant did not create its written hiring policy document until May 23,

2014-after the elimination of Plaintiffs position. Dkt. No. [So] at 41. Given that

"evidence of a post-hoc attempt to justify an employment decision may be

evidence of pretext," a reasonable fact-finder could view Defendant's decision to

formally document its hiring process as an attempt to "mask unlawful

discrimination." Keaton v. Cobb Cty., 545 F. Supp. 2d 1275, 1303 (N.D. Ga.

2008). Thus, because Plaintiffs evidence-viewed in its entirety-could yield a

reasonable inference that Defendant discriminated against Plaintiff on the basis

of her age, the Court declines to adopt the Magistrate Judge's findings with

regards to pretext.

b. Retaliation

Last, Plaintiff objects to the Magistrate Judge's determination that

Defendant's elimination of her position and subsequent decisions not to hire her

for various open positions do not establish pretext for retaliation. See Dkt. No.

[83] at 12. Where a plaintiff has established a prima facie case of retaliation, the

employer "has an opportunity to articulate a legitimate, nonretaliatory reason for

the challenged employment action." Pennington v. City of Huntsville, 261 F.3d

1262, 1266 (11th Cir. 2001). The burden then shifts back to the plaintiff to prove

that the employer's provided reason is pretext for prohibited, retaliatory conduct.

See id. Here, the Magistrate Judge determined that, in attempting to establish

8
 Case 1:16-cv-04317-LMM Document 85 Filed 09/13/18 Page 9 of 10

pretext, Plaintiff relied on many of the same arguments she offered in support of

her age discrimination claims. See Dkt. No. [80] at 49. As discussed in this Order,

Plaintiffs arguments with respect to Rhodes's and Gammage's comments,

Defendant's initial false reason for eliminating Plaintiffs position, and

Defendant's creation of a hiring policy in May 2014 establish evidence of pretext

sufficient to survive a motion for summary judgment. Thus, the Court declines to

adopt the Magistrate Judge's recommendation as to the specific findings that this

evidence does not establish pretext for Plaintiffs retaliation claim.

The Magistrate Judge also held that Plaintiffs additional evidence with

respect to retaliation does not establish pretext. See id. Plaintiff objects, arguing

the Magistrate Judge erred in finding that the human resources manager, Katrina

Kramer, investigated Plaintiffs one specific complaint of discrimination. Dkt. No.

[83] at 14. This objection misstates the record, as the Court's review of the record

shows that Kramer acknowledged that Plaintiff lodged multiple complaints with

human resources-however, Plaintiff only provided Kramer with the specific

details (names and dates) of one incident. Dkt. No. [75-6] at 255. Further,

Plaintiff fails to recognize that a reasonable jury could not find the required

causal connection between Plaintiffs scattered complaints to Kramer between

March and May 2014, and Defendant's later decision not to rehire Plaintiff in

December 2014. See Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (nth

Cir. 2007) ("The burden of causation can be met by showing close temporal

proximity between the statutorily protected activity and the adverse employment

9
 Case 1:16-cv-04317-LMM Document 85 Filed 09/13/18 Page 10 of 10

action ... [b]ut mere temporal proximity, without more, must be very close.")

(internal citation omitted). Defendant's objection to this particular finding is

therefore OVE RRULED.

III. CONCLUSION

In accordance with the foregoing, the Court AD OPTS IN PART the

Magistrate Judge's R&R [Bo]. Defendant's Motion for Summary Judgment [62]

is DENIED and Plaintiffs Motion for Leave to File Plantiffs Sur-Reply [77] is

DENIED.

Further, the parties are O RD ERED to mediation. The parties are

O RD ERED to confer and notify the Court within seven days of the date of the

entry of this Order whether they are agreeing to a private mediation or a

Magistrate Judge mediation without cost. If the case does not settle at mediation,

the parties are DIRECTED to confer and submit a proposed pre-trial order

within 30 days of the date of the failed mediation.

IT IS SO O RD ERED this 13th day of September, 2018.

10