Jones v. Interdenominational Theological Center, Inc.

MOTION for Summary Judgment with Brief In Support

N.D. Ga.May 1, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION BETTY R. JONES, ) ) Plaintiff, ) ) CIVIL ACTION FILE NO. v. ) ) 1:16-cv-00920-LMM-LTW INTERDENOMINATIONAL ) THEOLOGICAL CENTER, INC., ) ) Defendant. ) ) DEFENDANT INTERDENOMINATIONAL THEOLOGICAL CENTER, INC.’S MOTION FOR SUMMARY JUDGMENT COMES NOW Defendant Interdenominational Theological Center, Inc. (“ITC”) and, pursuant to Federal Rule of Civil Procedure 56 and Local Rule 56 of the United States District Court for the Northern District of Georgia, hereby moves this Court for summary judgment on all of Plaintiff Betty R. Jones’ (“Plaintiff”) claims as set forth in her Complaint. Plaintiff alleges that ITC discriminated and retaliated against her unlawfully in violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621 et seq., and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. Plaintiff also asserts that ITC breached the parties’ purported employment agreement. Case 1:16-cv-00920-LMM-LTW Document 41 Filed 05/01/17 Page 1 of 6 2 The undisputed material facts of this case establish that ITC did not engage in any unlawful age or race discrimination or retaliation whatsoever or breach any alleged employment agreement with Plaintiff. Discovery having expired, Plaintiff’s claims of discrimination, retaliation, and breach of contract are now ripe for summary adjudication. In support of this Motion, ITC relies upon the following materials: 1) A Statement of Undisputed Material Facts in support hereof and filed contemporaneously herewith; 2) A Memorandum of Law in support hereof and filed contemporaneously herewith; 3) The Deposition of Plaintiff Betty R. Jones (Jan. 24 & 26, 2017), the condensed transcript and relevant exhibits of which are filed contemporaneously herewith; 4) The Deposition of Dr. Temba Mafico (March 20, 2017), the condensed transcript of which is filed contemporaneously herewith; 5) The Deposition of Dr. Itihari Toure (March 20, 2017), the condensed transcript of which is filed contemporaneously herewith; 6) The Deposition of Dr. Edward Wimberly (March 14, 2017), the condensed transcript of which is filed contemporaneously herewith; Case 1:16-cv-00920-LMM-LTW Document 41 Filed 05/01/17 Page 2 of 6 3 7) The Deposition of Idell Henderson (March 14, 2017), the condensed transcript of which is filed contemporaneously herewith; 8) The Affidavit of Dr. Temba Mafico (May 1, 2017), the original of which is filed contemporaneously herewith; 9) The Affidavit of Dr. Itihari Toure (April 28, 2017), the original of which is filed contemporaneously herewith; and 10) The Affidavit of Idell Henderson (April 27, 2017), the original of which is filed contemporaneously herewith. WHEREFORE, Defendant Interdenominational Theological Center, Inc. respectfully requests that this Court GRANT summary judgment in its favor on all of Plaintiff Betty Jones’ claims as set forth in her Complaint. Because Plaintiff cannot establish that there are any genuine issues of material fact in this case, ITC is entitled to summary judgment on all of Plaintiff’s claims and allegations in their entirety, with prejudice, as a matter of law. This 1st day of May, 2017. Respectfully submitted, HOLLAND & KNIGHT LLP s/ Joshua I. Bosin Joshua I. Bosin Georgia Bar No. 143054 Case 1:16-cv-00920-LMM-LTW Document 41 Filed 05/01/17 Page 3 of 6 4 Regions Plaza, Suite 1800 1180 West Peachtree Street Atlanta, Georgia 30309 Telephone: (404) 817-8500 Facsimile: (404) 881-0470 E-Mail: joshua.bosin@hklaw.com Counsel for Defendant Interdenominational Theological Center, Inc. Case 1:16-cv-00920-LMM-LTW Document 41 Filed 05/01/17 Page 4 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION BETTY R. JONES, ) ) Plaintiff, ) ) CIVIL ACTION FILE NO. v. ) ) 1:16-CV-00920-LMM-LTW INTERDENOMINATIONAL ) THEOLOGICAL CENTER, INC., ) ) Defendant. ) ) CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have this day caused to be served a true and correct copy of the foregoing DEFENDANT INTERDENOMINATIONAL THEOLOGICAL CENTER, INC.’S MOTION FOR SUMMARY JUDGMENT with the Clerk of Court using the CM/ECF system, which will automatically send e-mail notification of such filing to the following Counsel of Record: Gregory T. Bailey, Esq. Gregory T. Bailey & Associates 5682 Palazzo Way, Suite 101 Douglasville, Georgia 30134 E-Mail: attygregtbailey@msn.com Case 1:16-cv-00920-LMM-LTW Document 41 Filed 05/01/17 Page 5 of 6 This 1st day of May, 2017. s/ Joshua I. Bosin Joshua I. Bosin Georgia Bar No. 143054 #51030205_v1 Case 1:16-cv-00920-LMM-LTW Document 41 Filed 05/01/17 Page 6 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION BETTY R. JONES, ) ) Plaintiff, ) ) CIVIL ACTION FILE NO. v. ) ) 1:16-cv-00920-LMM-LTW INTERDENOMINATIONAL ) THEOLOGICAL CENTER, INC., ) ) Defendant. ) ) DEFENDANT INTERDENOMINATIONAL THEOLOGICAL CENTER, INC.’S STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT I. THE INTERDENOMINATIONAL THEOLOGICAL CENTER. A. Institutional Background. 1. The Interdenominational Theological Center, Inc. (“ITC”) is a historically black graduate theological school consisting of a Christian Africentric ecumenical consortium of seminaries and fellowships with a mission to educate students to become spiritual leaders in the Christian church and its communities. (Affidavit of Temba Mafico (“Mafico Aff.”) ¶ 9, May 1, 2017.) Case 1:16-cv-00920-LMM-LTW Document 41-1 Filed 05/01/17 Page 1 of 28 2 2. ITC has no secular purpose. (Mafico Aff. ¶ 7.) 3. Several religious denominations are represented at ITC through their member seminaries: United Methodist, Baptist, African Methodist Episcopal, Christian Methodist Episcopal, and Church of God in Christ. (Mafico Aff. ¶ 10.) 4. ITC is accredited by the Commission on Accrediting of the Association of Theological Schools in the United States and Canada to award masters and doctorate degrees. (Mafico Aff. ¶ 11.) 5. ITC offers four degree programs: Master of Divinity (M.Div.), Master of Arts in Christian Education (M.A.C.E.), Doctor of Ministry (D.Min.), and Doctor of Theology in Pastoral Counseling (Th.D.). (Mafico Aff. ¶ 12.) 6. The curricula for all degree programs at ITC focus on four areas: biblical literature and languages; history, ethics and theology; persons, society and culture; and church and its ministries. (Mafico Aff. ¶ 13.) Case 1:16-cv-00920-LMM-LTW Document 41-1 Filed 05/01/17 Page 2 of 28 3 B. The Master Of Divinity (M.Div.) Degree. 7. The M.Div degree is designed to integrate theological studies and the work of ministry so that theory and practice, academy, and parish become complementary components of the educational process. (Mafico Aff. ¶ 14; Deposition of Plaintiff Betty R. Jones (“Pl.’s Dep.”) 66:8-20, Ex. 9 at 31, Jan. 24 and 26, 2017.) 8. Foundations for Ministry, Elements of Ministry, and Ministry and Context comprise a basic three-phase capstone course process required of all candidates for the M.Div. degree. (Affidavit of Itihari Toure (“Toure Aff.”) ¶ 5, Apr. 28, 2017; Pl.’s Dep. 66:8-20, Ex. 9 at 51.) 9. The M.Div. capstone course introduces students to holistic, theological education for Christian ministry for the 21st Century through an interdisciplinary Christian perspective with a focus on the integration of the total curriculum and the awareness of lifelong learning as a prerequisite for competent, committed, and compassionate religious leadership. (Toure Aff. ¶ 6; Pl.’s Dep. 66:8-20, Ex. 9 at 52.) Case 1:16-cv-00920-LMM-LTW Document 41-1 Filed 05/01/17 Page 3 of 28 4 10. Foundations for Ministry normally occurs at the beginning of the student’s first year, Elements of Ministry during the second semester of the middler (second) year, and Ministry and Context I and II during the senior year. (Toure Aff. ¶ 7; Pl.’s Dep. 66:8-20, Ex. 9 at 51-52.) 11. Ministry and Context I and II require coursework and an internship placement (in ecumenical organizations, local parishes, social agencies, military bases, and educational or other institutions related to the helping professions) that assist students to evidence proficiency in preparedness for entering the world of ministry after careful and intentional preparation. (Mafico Aff. ¶ 15; Deposition of Edward Wimberly (“Wimberly Dep.”) 19:13-21, Mar. 14, 2017.) 12. The ultimate goal of Ministry and Context is to put Christian ministry in action. (Pl.’s Dep. 65:16-66:12.) C. Adjunct Faculty Hiring At ITC. 13. ITC hires its part-time, non-tenure track adjunct faculty on a semester or academic year basis. (Affidavit of Idell Henderson (“Henderson Aff.”) ¶¶ 5-6, Ex. 1 at 50-51, Apr. 27, 2017.) Case 1:16-cv-00920-LMM-LTW Document 41-1 Filed 05/01/17 Page 4 of 28 5 14. Part-time, non-tenure track adjunct faculty appointments are self-terminating. (Deposition of Idell Henderson (“Henderson Dep.”) 40:7-9, Mar. 14, 2017.) 15. Like appointment letters for other members of the faculty, appointment letters for part-time, non-tenure track adjunct faculty, if issued, specify the terms and conditions of employment, including the type, rank, salary, primary duties, and the term of appointment. (Henderson Aff. ¶¶ 5, 7, Ex. 1 at 77.) 16. The hiring of part-time, non-tenure track adjunct faculty is based upon what ITC’s leadership feels is required to accomplish the school’s religious mission. (Henderson Aff. ¶ 8.) D. Equal Employment Opportunity At ITC. 17. ITC has implemented equal employment opportunity (“EEO”) policies that are posted internally and disseminated to faculty through the Faculty Handbook. (Henderson Aff. ¶ 5, 9, Ex. 1 at 115-30.) 18. The EEO policies prohibit, among other things, discrimination based on age and gender, as well as retaliation. (Henderson Aff. ¶ 10.) Case 1:16-cv-00920-LMM-LTW Document 41-1 Filed 05/01/17 Page 5 of 28 6 19. ITC’s EEO policies have been in place through all time periods relevant to this action. (Henderson Aff. ¶ 11.) 20. ITC provides training to faculty and administration on EEO matters. (Henderson Aff. ¶ 12.) 21. It is and has been ITC’s practice to comply with all civil rights statutes, including those prohibiting unlawful discrimination and retaliation. (Henderson Aff. ¶ 13.) II. PLAINTIFF’S BACKGROUND INFORMATION. 22. Plaintiff is female, and her date of birth is December 2, 1941. (Pl.’s Dep. 48:6-14.) 23. Plaintiff is an ordained pastor and a member of the clergy. (Pl.’s Dep. 19:12- 17.) 24. Plaintiff is currently the pastor at County Line United Methodist Church in Ellenwood, Georgia. (Pl.’s Dep. 28:15-20, 30:3-5.) Case 1:16-cv-00920-LMM-LTW Document 41-1 Filed 05/01/17 Page 6 of 28 7 25. As a pastor in the United Methodist Church, Plaintiff is the head administrator and worship leader of the church, which involves, among other things, preaching, teaching bible study, maintaining church finances, and hiring and firing church personnel. (Pl.’s Dep. 29:10-23.) A. Plaintiff’s Calling To Be A Minister. 26. Plaintiff responded to a divine calling in 1994, became an ordained minister in the Baptist Church in 1997, and then became ordained in the United Methodist Church. (Pl.’s Dep. 19:18-27:20, 188:22-190:22.) 27. To become an ordained minister in the Baptist Church, Plaintiff undertook rigorous coursework in preparation to answer questions in front of an ordaining board made up of other ordained clergy. (Pl.’s Dep. 23:8-22, 188:22-191:10.) 28. After being ordained in the Baptist Church, Plaintiff responded to a divine intervention to become a member of the United Methodist Church. (Pl.’s Dep. 25:3- 18.) Case 1:16-cv-00920-LMM-LTW Document 41-1 Filed 05/01/17 Page 7 of 28 8 29. To become ordained in the United Methodist Church, Plaintiff took three courses at ITC to better understand the denomination. (Pl.’s Dep. 26:22-27:20.) 30. Once Plaintiff completed the coursework, she had to go before the United Methodist ordaining board to finalize her ordination, which involved writing papers dealing with the polity, history and theology of the United Methodist Church. (Pl.’s Dep. 26:22-27:20, 191:11-193:7.) 31. As an ordained minister in the United Methodist Church, Plaintiff can offer religious sacraments to church members, perform religious services (including preaching), and tend to the spiritual needs of church members. (Pl.’s Dep. 22:20- 24:5.) B. Plaintiff’s Education. 32. ITC enrolled Plaintiff as a student from 1997 through 2003. (Pl.’s Dep. 16:3- 6, Ex. 3.) 33. Plaintiff received her M.Div. from ITC in May 2000 and her D.Min. from ITC in May 2003. (Pl.’s Dep. 16:7-19, Ex. 3.) Case 1:16-cv-00920-LMM-LTW Document 41-1 Filed 05/01/17 Page 8 of 28 9 34. Plaintiff received her Ph.D. from Union Institute and University in interdisciplinary studies and creative leadership in October 2016. (Pl.’s Dep. 16:21- 17:8; Deposition of Itihari Toure (“Toure Dep.”) 33:7-17, Mar. 20, 2017.) C. Plaintiff’s Employment And Other Service To ITC. 35. Plaintiff began her employment at ITC as a Facilitator for the Ministry and Context course in academic year 2005-2006. (Henderson Aff. ¶ 14; Pl.’s Dep. 41:12-24, Ex. 5.) 36. Plaintiff consistently taught Ministry and Context at ITC through the spring 2015 semester in a variety of positions, including Adjunct Assistant Professor, Adjunct Instructor, Adjunct Professor, and Group Leader. (Henderson Aff. ¶ 15; Henderson Dep. 29:6-16; Pl.’s Dep. 41:12-24, Ex. 5.) 37. While employed as a faculty member at ITC, Plaintiff applied for and received a housing allowance, which provided for a tax exemption based upon Plaintiff’s status as a minister. (Pl.’s Dep. 243:25-244:25.) Case 1:16-cv-00920-LMM-LTW Document 41-1 Filed 05/01/17 Page 9 of 28 10 38. As a Ministry and Context faculty member, Plaintiff guided ITC students to become more self-aware and understanding of their relationship with God and how that self-awareness manifested itself through the students’ faithfulness and obedience to God. (Pl.’s Dep. 69:13-20, 86:22-87:15.) 39. Plaintiff worked with ITC students to prepare them to lead the gospel in their own congregations. (Pl.’s Dep. 70:4-7.) 40. Plaintiff pastored to her students, and she considered ITC as her “other church.” (Pl.’s Dep. 86:6-21.) 41. Plaintiff helped her students understand and explore prayer and scripture. (Pl.’s Dep. 89:10-14.) 42. At the beginning of every Ministry and Context class that Plaintiff taught, she or an ITC student led the class in prayer. (Pl.’s Dep. 91:1-6.) 43. Plaintiff invoked the presence of God during her Ministry and Context classes. (Pl.’s Dep. 92:4-7.) Case 1:16-cv-00920-LMM-LTW Document 41-1 Filed 05/01/17 Page 10 of 28 11 44. Although Plaintiff was considered an ITC faculty member, none of her teaching positions at ITC were tenure track or tenured; Plaintiff’s teaching positions were always part-time, adjunct, non-tenure track roles. (Henderson Aff. ¶ 16.) 45. Plaintiff also served as the Director of ITC’s Faith Journey program between 2010 and 2013. (Wimberly Dep. 22:2-5; Pl.’s Dep. 59:10-61:7.) 46. Plaintiff was responsible for recruiting students and matching them with suitable mentors based upon the students’ career goals with respect to ministry. (Pl.’s Dep. 61:16-21.) 47. Plaintiff preached to Faith Journey mentees, led prayer groups at Faith Journey retreats, and acted as a pastoral counselor to Faith Journey participants. (Pl.’s Dep. 62:2-63:21.) 48. Faith Journey’s objective was to keep seminarians in the church through a mentoring program for seminarians and postgraduate students at ITC. (Pl.’s Dep. 59:14-60:24.) Case 1:16-cv-00920-LMM-LTW Document 41-1 Filed 05/01/17 Page 11 of 28 12 49. Each element of Faith Journey was designed to teach mentees how to address situations that may come up during ministry through God and through Christ. (Pl.’s Dep. 63:16-21.) 50. In 2015, Plaintiff volunteered at ITC to assist with a scholarship fundraiser and a prayer breakfast, but ITC ultimately compensated her for her work as a consultant. (Pl.’s Dep. 209:10-22.) 51. For most of the academic semesters or years that Plaintiff taught at ITC, the school provided to Plaintiff a letter confirming her self-terminating, non-renewable teaching appointment at ITC. (Henderson Aff. ¶ 17; Henderson Dep. 40:7-9.) 52. For some of the academic semesters or years that Plaintiff taught at ITC, the school did not provide to Plaintiff a letter confirming her self-terminating, non- renewable teaching appointment at ITC, but the terms and conditions thereof remained the same. (Henderson Aff. ¶ 18; Henderson Dep. 40:7-9.) Case 1:16-cv-00920-LMM-LTW Document 41-1 Filed 05/01/17 Page 12 of 28 13 E. Plaintiff’s Employment At ITC Ends. 53. Plaintiff’s employment with ITC ended on May 1, 2015 when the 2014-2015 academic year concluded. (Henderson Dep. 29:6-16.) 54. ITC did not offer Plaintiff a position in Ministry and Context after the 2014- 2015 academic year because the focus of the course shifted from classroom instruction to students gaining experience in the field. (Toure Dep. 27:15-31:5.) 55. Students provided ITC with feedback that they felt unprepared for chaplaincy and doctoral studies, so when appointing instructors in Ministry and Context for academic year 2015-2016, ITC focused on individuals who had pastoral care experience outside of the church and who were intimately involved in completing the doctoral application process for specific core religious disciplines, such as systematic theology, homiletics, and ethics. (Toure Dep. 30:9-31:5.) 56. Plaintiff did not have her Ph.D. prior to the fall 2015 semester. (Toure Dep. 32:17-33:24; Pl.’s Dep. 16:21-23, 35:20-25, Ex. 2.) Case 1:16-cv-00920-LMM-LTW Document 41-1 Filed 05/01/17 Page 13 of 28 14 57. Plaintiff had not worked in any chaplaincy program since the 2000-2002 time period. (Pl.’s Dep. 35:20-25, Ex. 2.) 58. Plaintiff filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission against ITC on December 8, 2015. (Pl.’s Dep. 36:25- 37:18, Ex. 4.) III. THE DIRECTOR OF MINISTRY AND CONTEXT POSITION. A. Plaintiff’s 2011 Application. 59. In January 2011, ITC commenced a search for the Director of Ministry and Context position (the “Director position”), a full-time, tenure track faculty position, which was to be vacated at the end of the spring 2011 semester. (Mafico Aff. ¶ 17; Pl.’s Dep. 97:15-99:13, Ex. 13.) 60. Plaintiff applied, but she was not interviewed or selected for the open position. (Pl.’s Dep. 97:15-99:13, Ex. 13.) 61. In January 2011, Plaintiff was 69 years old. (Pl.’s Dep. 48:13-14, 97:15- 99:13, Ex. 13.) Case 1:16-cv-00920-LMM-LTW Document 41-1 Filed 05/01/17 Page 14 of 28 15 62. Dr. Beverly Wallace, a female candidate (age 57), was chosen to fill the Director position at that time. (Henderson Aff. ¶ 19; Pl.’s Dep. 99:9-16.) 63. Plaintiff never complained to ITC that the hiring process for the Director position in 2011 was discriminatory. (Mafico Aff. ¶ 18.) B. Plaintiff’s 2014 Application. 64. In March 2014, Dr. Mafico established a search committee to the fill the Director position, which was to be vacated at the end of the spring 2014 semester. (Deposition of Temba Mafico (“Mafico Dep.”) 13:6-13, 26:22-27:3, 35:5-12, Mar. 20, 2017.) 65. At that time, the Director position was still a full-time, tenure track faculty position. (Mafico Aff. ¶ 19; Mafico Dep. 13:10-13.) 66. Dr. Beverly Wallace, Dr. Margaret Aymer, Dr. Mark Ellingsen, Dr. Daniel Shin and Dr. Itihari Toure served as members of the 2014 search committee for the Director position. (Mafico Dep. 19:2-14.) Case 1:16-cv-00920-LMM-LTW Document 41-1 Filed 05/01/17 Page 15 of 28 16 67. At the time the search committee was formed, the Director position had neither been posted nor advertised, but a job description for the position was circulated to the search committee members. (Mafico Aff. ¶ 20.) 68. On May 2, 2014, Plaintiff, who was aware of Dr. Wallace’s departure from the faculty, submitted her curriculum vitae and a writing sample to Dr. Mafico to be considered for the Director position. (Mafico Dep. 14:16-18; Pl.’s Dep. 114:3-21, Ex. 18.) 69. On May 7, 2014, Plaintiff e-mailed Dr. Mafico to inquire as to whether her curriculum vitae and writing sample had been received and whether she would be interviewed for the position. (Pl.’s Dep. 116:5-22, Ex. 19.) 70. Dr. Mafico responded, acknowledged receipt of Plaintiff’s submission, and informed her that he would be in touch regarding the position once the semester slowed down. (Pl.’s Dep. 116:5-22, Ex. 19.) Case 1:16-cv-00920-LMM-LTW Document 41-1 Filed 05/01/17 Page 16 of 28 17 71. On May 15, 2014, Plaintiff again e-mailed Dr. Mafico resubmitting a letter of recommendation she had obtained in further support of her candidacy. (Pl.’s Dep. 118:7-11, Ex. 20.) 72. Plaintiff reiterated her strong desire to be appointed to the Director position and also expressed frustration about rumors she heard that a male candidate had been encouraged to apply for the position. (Pl.’s Dep. 118:7-11, Ex. 20.) 73. On June 12, 2014, Plaintiff sent another e-mail to Dr. Mafico about the Director position. (Pl.’s Dep. 123:12-17, Ex. 21.) 74. Plaintiff stated that she assumed she would have heard a decision regarding the position by that time, that she was asked by Dr. Mafico to submit evidence of her qualifications, and that she would not beg for the position. (Pl.’s Dep. 123:12- 17, Ex. 21.) 75. Plaintiff also stated that she did not like the fact that she was being “blatantly discriminated against.” (Pl.’s Dep. 123:12-17, Ex. 21.) Case 1:16-cv-00920-LMM-LTW Document 41-1 Filed 05/01/17 Page 17 of 28 18 76. On June 20, 2014, Plaintiff again e-mailed Dr. Mafico about the Director position. (Pl.’s Dep. 123:12-17, Ex. 21.) 77. Plaintiff stated that she was more than qualified to fill the position and noted that she had 11 years of prior experience with a major corporation. (Pl.’s Dep. 123:21-17, Ex. 21.) 78. Plaintiff indicated her recognition that she was “not the candidate of choice” and believed that was the reason why ITC’s President and its Office of Human Resources had become involved in the process. (Pl.’s Dep. 123:12-17, Ex. 21.) 79. Dr. Mafico responded to Plaintiff on June 21, 2014 informing her that he had received her e-mail and hoped that the decision regarding the Director position would reflect integrity and fairness. (Pl.’s Dep. 123:12-17, Ex. 21.) 80. On July 1, 2014, Plaintiff e-mailed Dr. Mafico and Dr. Edward Wimberly, ITC’s then-Interim President, inquiring as to why one of her “fellow-clergy people” was invited for an interview for the Director position and she was not. (Pl.’s Dep. 131:16-20, Ex. 22.) Case 1:16-cv-00920-LMM-LTW Document 41-1 Filed 05/01/17 Page 18 of 28 19 81. Plaintiff stated that she knew an additional male candidate also was brought in for an interview “because they talk,” but that Plaintiff said nothing to anyone at ITC when that occurred. (Pl.’s Dep. 131:16-20, Ex. 22.) 82. Plaintiff’s e-mail requested answers as to why she was not invited for an interview after working for ITC for 11 years. (Pl.’s Dep. 131:16-20, Ex. 22.) 83. Plaintiff claimed that Dr. Toure intended to prevent Plaintiff from getting the Director position and that Drs. Toure and Wallace had discussed a plot to get rid of Plaintiff at ITC the prior year (2013). (Pl.’s Dep. 131:16-135:19, Ex. 22.) 84. Plaintiff also stated that she would not donate to ITC while she was being discriminated against. (Pl.’s Dep. 131:16-135:19, Ex. 22.) 85. On July 2, 2014, Dr. Wimberly e-mailed Plaintiff and informed her of his belief that Plaintiff would be a natural fit for the Director position. (Pl.’s Dep. 139:13-141:20, Ex. 24.) Case 1:16-cv-00920-LMM-LTW Document 41-1 Filed 05/01/17 Page 19 of 28 20 86. Dr. Wimberly also informed Plaintiff that he was not involved in the search process at all for the Director position and understood that ITC was moving away from teaching faculty in the Ministry and Context program in favor of persons in placement sites. (Pl.’s Dep. 139:13-141:20, Ex. 24.) 87. Dr. Wimberly informed Plaintiff that a “whole new educational philosophy model [was] being employed for which [he was] just learning.” (Pl.’s Dep. 139:13- 141:20, Ex. 24.) 88. Dr. Wimberly also informed Plaintiff that she was not the only candidate he had recommended for consideration for the Director’s position. (Pl.’s Dep. 139:13- 141:20, Ex. 24.) 89. The modeling shift described by Dr. Wimberly in his July 2, 2014 e-mail resulted from ITC’s reevaluation of the Ministry and Context program in connection with the school’s institutional accreditation review. (Toure Aff. ¶ 8; Toure Dep. 27:15-29:8.) Case 1:16-cv-00920-LMM-LTW Document 41-1 Filed 05/01/17 Page 20 of 28 21 90. The curricular reevaluation process for Ministry and Context began during academic year 2013-2014. (Toure Aff. ¶ 9.) 91. As part of its Quality Enhancement Plan (required by ITC’s accrediting agency), ITC gathered data and conducted an assessment of student learning outcomes for participants in the program. (Toure Aff. ¶ 10; Toure Dep. 27:15-29:8.) 92. The evaluation revealed that Ministry and Context in its then-current iteration needed to be reconfigured. (Toure Aff. ¶ 11.) 93. ITC committed to undertake that work during academic year 2014-2015. Toure Aff. ¶ 12.) 94. Accordingly, on July 3, 2014, Dr. Mafico informed the search committee and additional academic leaders of ITC that he had suggested ‒ and Dr. Wimberly had agreed ‒ that the search for a new Director of Ministry and Context be suspended effective immediately. (Mafico Aff. ¶ 21; Mafico Dep. 35:13-18.) Case 1:16-cv-00920-LMM-LTW Document 41-1 Filed 05/01/17 Page 21 of 28 22 95. As of July 3, 2014, ITC had interviewed no one for the Director positon. (Mafico Aff. ¶ 23.) 96. Plaintiff claims that third parties told her that ITC interviewed individuals for the Director position in 2014, but she does not have any direct knowledge of ITC interviewing anyone for the Director positon in 2014. (Pl.’s Dep. 132:19-133:13.) 97. ITC reopened the search for the Director position in 2015 and 2016. (Henderson Aff. ¶ 21.) 98. The Director position was advertised with the American Academy of Religion, the Chronicle of Higher Education, and Indeed.com. (Henderson Dep. 26:3-8.) 99. Plaintiff did not reapply for the Director position in 2015 or 2016. (Pl.’s Dep. 170:19-22.) 100. If an applicant has applies for a position at ITC for which a search has been reopened, the applicant must apply again and resubmit all of her credentials. (Mafico Case 1:16-cv-00920-LMM-LTW Document 41-1 Filed 05/01/17 Page 22 of 28 23 Dep. 31:20-24; Henderson Dep. 39:10-24.) 101. To date, ITC has not filled the Director position. (Henderson Aff. ¶ 23; Wimberly Dep. 20:19-23; Toure Dep. 26:15-18, 30:4-8.) IV. THE SPECIAL PROGRAMS AND FIELD PLACEMENT COORDINATOR POSITION. 102. As part of their degree programs, ITC students are required to participate in off-campus student internship placements. (Mafico Aff. ¶ 24.) 103. Historically, ITC had not designated an individual to supervise those placements, except for those positions held by the institution’s Ministry and Context students (which were coordinated by the Director of Ministry and Context). (Mafico Aff. ¶ 25.) 104. To streamline the placement process campus-wide, including for the Ministry and Context internships, ITC’s leadership decided that for academic year 2014-2015, it would create the interim, non-faculty, administrative position of Special Programs and Field Placement Coordinator (the “Coordinator position”). (Mafico Aff. ¶ 26; (Mafico Dep. 17:23-25, 38:15-17.) Case 1:16-cv-00920-LMM-LTW Document 41-1 Filed 05/01/17 Page 23 of 28 24 105. The search for the Coordinator position began in summer 2014. (Mafico Aff. ¶ 27.) 106. ITC did not advertise for the Coordinator position. (Mafico Dep. 18:3-4, 40:8- 11.) 107. ITC reserves its right to not post a particular position opening for staff roles. (Henderson Aff. ¶¶ 24, 28.) 108. ITC needed to fill the Coordinator position with an individual who had extensive experience with field placements. (Mafico Aff. ¶ 29.) 109. Two candidates were considered for the Coordinator positon: Marcus Dixon and Leroy Wright. (Mafico Aff. ¶ 30; Toure Dep. 29:9-20.) 110. Dr. Mafico recommended Marcus Dixon for the Coordinator position, and Dr. Wimberly recommended Leroy Wright for the Coordinator position. (Mafico Dep. 15:3-6; Wimberly Dep. 26:7-13.) Case 1:16-cv-00920-LMM-LTW Document 41-1 Filed 05/01/17 Page 24 of 28 25 111. ITC offered Dr. Wright the Coordinator position on July 14, 2014, and he began his employment at ITC in that role in August 2014. (Henderson Aff. ¶ 25.) 112. Dr. Wright had extensive experience with field placements. (Mafico Aff. ¶ 31.) 113. At the time Dr. Wright accepted the Coordinator position in July 2014, he was 67 years old. (Henderson Aff. ¶ 26.) 114. Plaintiff did not apply for the Coordinator position. (Mafico Dep. 17:20- 18:2.) 115. Plaintiff only had communicated her interest to ITC in being promoted to faculty positions. (Mafico Aff. ¶ 32.) 116. Plaintiff did not have extensive experience with field placements. (Mafico Aff. ¶ 33.) Case 1:16-cv-00920-LMM-LTW Document 41-1 Filed 05/01/17 Page 25 of 28 26 This 1st day of May, 2017. Respectfully submitted, HOLLAND & KNIGHT LLP s/ Joshua I. Bosin Joshua I. Bosin Georgia Bar No. 143054 Regions Plaza, Suite 1800 1180 West Peachtree Street Atlanta, Georgia 30309 Telephone: (404) 817-8500 Facsimile: (404) 881-0470 E-Mail: joshua.bosin@hklaw.com Counsel for Defendant Interdenominational Theological Center, Inc. Case 1:16-cv-00920-LMM-LTW Document 41-1 Filed 05/01/17 Page 26 of 28 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION BETTY R. JONES, ) ) Plaintiff, ) ) CIVIL ACTION FILE NO. v. ) ) 1:16-CV-00920-LMM-LTW INTERDENOMINATIONAL ) THEOLOGICAL CENTER, INC., ) ) Defendant. ) ) CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have this day caused to be served a true and correct copy of the foregoing DEFENDANT INTERDENOMINATIONAL THEOLOGICAL CENTER, INC.’S STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT with the Clerk of Court using the CM/ECF system, which will automatically send e-mail notification of such filing to the following Counsel of Record: Gregory T. Bailey, Esq. Gregory T. Bailey & Associates 5682 Palazzo Way, Suite 101 Douglasville, Georgia 30134 E-Mail: attygregtbailey@msn.com Case 1:16-cv-00920-LMM-LTW Document 41-1 Filed 05/01/17 Page 27 of 28 This 1st day of May, 2017. s/ Joshua I. Bosin Joshua I. Bosin Georgia Bar No. 143054 #51016282_v1 Case 1:16-cv-00920-LMM-LTW Document 41-1 Filed 05/01/17 Page 28 of 28 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION BETTY R. JONES, ) ) Plaintiff, ) ) CIVIL ACTION FILE NO. v. ) ) 1:16-cv-00920-LMM-LTW INTERDENOMINATIONAL ) THEOLOGICAL CENTER, INC., ) ) Defendant. ) ) DEFENDANT INTERDENOMINATIONAL THEOLOGICAL CENTER, INC.’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT Plaintiff Betty R. Jones (“Plaintiff”) alleges that the Interdenominational Theological Center, Inc. (“ITC”) discriminated and retaliated against her unlawfully in violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621 et seq. (the “ADEA”), and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (“Title VII”). Plaintiff also alleges that ITC breached the parties’ purported employment agreement. More specifically, Plaintiff alleges that ITC engaged in the following unlawful conduct: 1. Failing to interview and promote her to the Director of Ministry and Context position because of her age in violation of the Case 1:16-cv-00920-LMM-LTW Document 41-2 Filed 05/01/17 Page 1 of 29 2 ADEA (Deposition of Betty Jones (“Pl.’s Dep.”) 57:20-24, Ex. 7 at ¶¶ 1, 17, Jan. 24 & 26, 2017) and her sex in violation of Title VII (Id.); 2. Failing to interview and promote her to the Special Programs and Field Placement Coordinator position because of her age in violation of the ADEA (Id.) and her sex in violation of Title VII (Id.); 3. Discriminating against her because of her age in violation of the ADEA (Id.) and her sex in violation of Title VII (Id.) when ITC did not offer Plaintiff a new teaching appointment for the fall 2015 semester; 4. Retaliating against her for making internal complaints of discrimination (Id.); and 5. Breaching the parties’ employment agreement when ITC elected not to offer her a new teaching appointment beyond the spring 2015 semester (Id. at ¶ 26). Because Plaintiff’s claims are precluded by the ministerial exception, are all untimely, and there is no evidence to support her claims, ITC is entitled to summary judgment against Plaintiff and in its favor as a matter of law. STATEMENT OF UNDISPUTED MATERIAL FACTS The facts of this case are set forth in the accompanying Defendant’s Statement of Undisputed Material Facts and are thus incorporated herein by reference. SUMMARY JUDGMENT STANDARD Federal Rule of Civil Procedure 56(c) requires summary judgment when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). Summary judgment is appropriate when Case 1:16-cv-00920-LMM-LTW Document 41-2 Filed 05/01/17 Page 2 of 29 3 the nonmoving party has failed to produce evidence “sufficient to establish the existence of an element essential to the party’s case, and on which that party will bear the burden at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). While all evidence and factual inferences are viewed in a light most favorable to the nonmoving party, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). ARGUMENT AND CITATION OF AUTHORITIES I. PLAINTIFF’S CLAIMS ARE PRECLUDED BY THE MINISTERIAL EXCEPTION TO THE FIRST AMENDMENT. A. Plaintiff’s Title VII and ADEA Claims. Plaintiff’s claims are precluded by the First Amendment to the U.S. Constitution which provides, in part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” U.S. Const. amend. I. Both the Free Exercise Clause and the Establishment Clause of the First Amendment “bar the government from interfering with the decision of a religious group to fire one of its ministers.” Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 181 (2012). When an employee challenges a religious institution’s employment decision and the employee is a member of the clergy or otherwise serves a ministerial Case 1:16-cv-00920-LMM-LTW Document 41-2 Filed 05/01/17 Page 3 of 29 4 function, the Supreme Court and the Eleventh Circuit invoke the ministerial exception to preclude such claims. See generally Hosanna-Tabor, 565 U.S. 171; see GeorgiaCarry.Org, Inc. v. Ga., 764 F. Supp. 2d 1306, 1311 (M.D. Ga. 2011) (“[T]he exception primarily functions to exempt religious organizations from the operation of otherwise applicable laws such as Title VII or the ADEA in employment discrimination cases brought by those performing certain ministerial functions.”); Klouda v. Sw. Baptist Theological Seminary, 543 F. Supp. 2d 594, 611 (N.D. Tex. 2008) (relying on Fifth Circuit decisions issued prior to October 1, 1981).1 The Supreme Court and the Eleventh Circuit include faculty members of seminaries within the definition of a “minister” for purposes of applying the ministerial exception, thus providing employers with absolute protection for employment decisions regarding the hiring and firing of those faculty members. A seminary’s role is vital to the church because the “hiring of faculty and other personnel to train ministers for local churches is equally central to the religious mission and entitled to no less protection under the first amendment.” E.E.O.C. v. Sw. Baptist Theological Seminary, 651 F.2d 277, 281 (5th Cir. Unit A 1981). Additionally, the character and purpose of a seminary is wholly sectarian. See Klouda, 543 F. Supp. 2d at 607. “No one would argue that excessive intrusion into 1 Decisions of the Fifth Circuit issued prior to October 1, 1981 are binding precedent on the Eleventh Circuit and its District Courts. See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc). Case 1:16-cv-00920-LMM-LTW Document 41-2 Filed 05/01/17 Page 4 of 29 5 the process of calling ministers to serve a local church is constitutionally permissible.” Sw. Baptist Theological Seminary, 651 F.2d at 281. Because faculty members at seminaries are “intermediaries between the [church] and future ministers of many of the local . . . churches,” Id. at 283-284, applying Title VII and/or the ADEA to them results in an “encroachment by the State into an area of religious freedom which it is forbidden to enter.” McClure v. Salvation Army, 460 F.2d 553, 560 (5th Cir. 1972). In determining whether a faculty member of a seminary qualifies as a minister, the Supreme Court has not adopted a rigid formula. Hosanna-Tabor, 565 U.S. at 190. “What matters is that [the employee] played an important role as an instrument of her church’s religious message and as a leader of its worship activities.” Id. at 204 (Alito, J., concurring). “[A] court will focus on a plaintiff’s functions and duties, as opposed to simply his or her title.” Hopkins v. DeVeaux, 781 F. Supp. 2d 1283, 1291 (N.D. Ga. 2011). “If ‘the employee’s primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship,’ or the position is ‘important to the spiritual and pastoral mission of the church,’ the plaintiff may be considered a ‘minister’ for purposes of the ministerial exception.” Ross v. Metro. Church of God, 471 F. Supp. 2d 1306, 1310 (N.D. Ga. 2007). Case 1:16-cv-00920-LMM-LTW Document 41-2 Filed 05/01/17 Page 5 of 29 6 In Hosanna-Tabor, the Supreme Court recognized the ministerial exception and held that it applied to the claims of a former educator at a religious day school “given all the circumstances of the [former teacher’s] employment.” 565 U.S. at 190. The Supreme Court approved of the following factors as weighing in favor of the applicability of the ministerial exception: • The school held the former teacher out as a minister; • The former teacher’s “title as a minister reflected a significant degree of religious training followed by a formal process of commissioning;” • The former teacher claimed a special ministry-related housing allowance on her income taxes; and • The former teacher’s “job duties reflected a role in conveying the Church’s message and carrying out its mission,” including teaching religious courses, leading her students in prayer, and leading chapel service. Id. at 191-192. Relying on those factors, this Court applied the ministerial exception to a teacher employed by Central Fellowship Christian Academy in Macon, Georgia. See Woods v. Cent. Fellowship Christian Acad., No. 1:11-cv-3999-JEC-RGV, 2012 WL 12888678, at *2 (N.D. Ga. Oct. 1, 2012), R. & R. adopted, 2013 WL 12155198 (N.D. Ga. Mar. 21, 2013), aff’d, 545 F. App’x 939 (11th Cir. 2013). In Woods, this Court granted the religious school’s motion for summary judgment and dismissed a former teacher’s Title VII race discrimination claim because of the ministerial exception. See Woods, 2012 WL 12888678, at *4-5 (“The Case 1:16-cv-00920-LMM-LTW Document 41-2 Filed 05/01/17 Page 6 of 29 7 undisputed evidence supports a finding that Woods had a significant ‘role in conveying the Church’s message and carrying out its mission,’ and he accordingly falls under the ministerial exception and outside the protections of Title VII[.]”). Given the similar facts here, the ministerial exception applies and demands that Plaintiff’s claims be dismissed. Exactly like Hosanna-Tabor Evangelical Lutheran Church and School and Central Fellowship Christian Academy, ITC is a religious school. (Affidavit of Temba Mafico (“Mafico Aff.” ¶ 7, May 1, 2017.) ITC’s sole mission is to educate graduate students to become spiritual leaders in the church and global community.2 (Mafico Aff. ¶¶ 8-9.) ITC consists of a Christian Africentric ecumenical consortium of seminaries and fellowships (United Methodist, Baptist, African Methodist Episcopal, Christian Methodist Episcopal, and Church of God in Christ). (Mafico Aff. ¶ 10.) The curricula for all of ITC’s degree programs focus on four areas: biblical literature and languages; history, ethics and theology; persons, society and culture; and church and its ministries. (Mafico Aff. ¶ 13.) ITC serves no secular purpose. (Mafico Aff. ¶ 7.) Plaintiff is an ordained minister and the foremost member of a religious community. Plaintiff’s education is reflective of her being a “called teacher” ‒ she took religious classes, earned a Master’s of Divinity degree from ITC in May 2000 2 ITC is accredited by the Commission on Accrediting of the Association of Theological Schools in the United States and Canada. (Mafico Aff. ¶ 11.) Case 1:16-cv-00920-LMM-LTW Document 41-2 Filed 05/01/17 Page 7 of 29 8 and a Doctor of Ministry degree from ITC in 2003, and she serves as the pastor at a church. (Pl.’s Dep. 16:7-19, Ex. 3, 23:8-22, 26:22-27:20, 28:15-20, 30:3-5, 188:22- 191:10.) Plaintiff admitted that she responded to a divine calling from God to preach the gospel and became a pastor first in the Baptist Church and then the United Methodist Church. (Pl.’s Dep. 19:18-27:20, 188:22-190:22.) The ordination process involved significant religious study and an intensive review by the denominational councils. (Pl.’s Dep. 23:8-22, 26:22-27:20, 188:22-193:7.) As a pastor, Plaintiff’s responsibilities are primarily ecclesiastical. (Pl.’s Dep. 29:10-23.) Plaintiff’s teaching responsibilities at ITC provide further support for the applicability of the ministerial exception to her claims. For the entirety of her teaching career at ITC, Plaintiff was a member of the institution’s Ministry and Context adjunct faculty. (Mafico Aff. ¶ 34.) Ministry and Context is part of the mandatory curriculum of the capstone course for the Master of Divinity degree at ITC. (Mafico Aff. ¶ 16.) The program is intended to introduce senior-level students to theological education for Christian ministry and “to guide [them] to become more acutely self-aware of their relationship to God, their vocational calling, and how that self-awareness manifests itself through their faithfulness and obedience to God in specific acts of Ministry.” (Pl.’s Dep. 66:15-20, Ex. 9 at 91.) Plaintiff testified that the Ministry and Context course has a purely religious purpose, is ultimately Case 1:16-cv-00920-LMM-LTW Document 41-2 Filed 05/01/17 Page 8 of 29 9 important to the spiritual and pastoral mission of the church, and exists to put Christian ministry in action. (Pl.’s Dep. 65:16-66:12.) Plaintiff’s other responsibilities at ITC, including pastoring to students, helping students understand their relationship with God and Christ, guiding students to a fuller religious ministry, exploring and leading prayer with students, teaching students about the word of God, and attending and leading chapel services, all support the applicability of the ministerial exception to Plaintiff’s claims. (See generally Pl.’s Dep. 86:6-93:2.) Because of her teaching at ITC, Plaintiff even claimed a special housing allowance exemption available to ministers pursuant to 26 U.S.C. § 107. See Hosanna Tabor, 565 U.S. at 191-92. (Pl.’s Dep. 243:25-244:25.) There can be no dispute that Plaintiff is a minister as contemplated by the Supreme Court and the Eleventh Circuit. She is an ordained pastor and her sole responsibility at ITC was to educate future Church leaders, teachers, pastors, and preachers about Christian ministry and faith. Plaintiff even claimed the special housing allowance exemption because of her teaching ‒ just like the faculty member in Hosanna Tabor. As such, Plaintiff’s Title VII and ADEA claims are foreclosed by the ministerial exception and subject to immediate dismissal as a matter of law. B. Plaintiff’s Breach of Contract Claim. As described in Section IV, infra, there was no contract between Plaintiff and ITC to be breached. Nevertheless, although the Hosanna-Tabor Court “express[ed] Case 1:16-cv-00920-LMM-LTW Document 41-2 Filed 05/01/17 Page 9 of 29 10 no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers[,]” 565 U.S. at 196, numerous lower courts have dismissed breach of employment contract claims because of the ministerial exception. See, e.g., Ogle v. Church of God, 153 F. App’x 371, 375-376 (6th Cir. 2005); Clapper v. Chesapeake Conference of Seventh-Day Adventists, No. 97-2648, 1998 WL 904528 at *8 (4th Cir. Dec. 29, 1998). Reviewing ITC’s decision to appoint or not appoint Plaintiff would force this Court to “tread too closely to religious affairs.” Nevius v. Africa Inland Mission Inter., 511 F. Supp. 2d 114, 120 (D.D.C. 2007). The hiring of ITC’s faculty is entirely based upon what its leadership feels is required to accomplish its religious mission. (Mafico Aff. ¶ 35.) And there is simply no room for judicial interpretation of to whom or why ITC offers any of its teaching appointments, as this “would involve inquiring into ‘a core matter of ecclesiastical self-governance not subject to interference by a state.’” Id. Accordingly, Plaintiff’s breach of contract claim is also precluded by the ministerial exception and subject to immediate dismissal. II. PLAINTIFF’S CLAIMS ALSO FAIL BECAUSE THEY ARE UNTIMELY AND MUST BE DISMISSED AS A MATTER OF LAW. Even if Plaintiff’s claims were not already precluded by the ministerial exemption, her claims also fail because they are time barred. A plaintiff must file a timely administrative charge before initiating a civil action pursuant to Title VII or Case 1:16-cv-00920-LMM-LTW Document 41-2 Filed 05/01/17 Page 10 of 29 11 the ADEA. See H&R Block E. Enters., Inc. v. Morris, 606 F.3d 1285, 1295 (11th Cir. 2010); Bost v. Fed. Express Corp., 372 F.3d 1233, 1238 (11th Cir. 2004). “In Georgia, a plaintiff must file a charge of discrimination within 180 days after the alleged act of discrimination.” Ahmed v. Bd. of Regents of the Univ. Sys. of Ga., 339 F. App’x 937, 937-38 (11th Cir. 2009). Plaintiff filed her EEOC Charge on December 8, 2015. (Pl.’s Dep. 36:25- 37:18, Ex. 4.) Any complaints by Plaintiff about incidents or employment actions before June 11, 2015 do not give rise to liability on the part of ITC and are time barred. Plaintiff asserts multiple discrete acts of discrimination and/or retaliation in this case. Because “[t]he clock for the charging period starts when the discrete unlawful practice takes place,” each of the acts alleged by Plaintiff as discriminatory and/or retaliatory must be evaluated to determine whether it was the subject of a timely EEOC Charge. See Smithers v. Wynne, 319 F. App’x 755, 757 (11th Cir. 2008); Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). Plaintiff attempts to argue that her claims constitute a single continuous act of discrimination, but both the Supreme Court and the Eleventh Circuit hold that the continuing violation doctrine is inapplicable to claims of disparate treatment and retaliation. (Pl.’s Dep. 57:20-24, Ex. 7 at ¶ 21.) See Morgan, 536 U.S. at 113; Brook v. CSX Transp., Inc., 555 F. A’ppx. 878, 880 (11th Cir. 2014) (“However, the [continuing violation] doctrine does not apply to discrete acts of discrimination, such Case 1:16-cv-00920-LMM-LTW Document 41-2 Filed 05/01/17 Page 11 of 29 12 as a promotion denial or refusal to hire.”); Watson v. Ala. Farmers Coop., Inc., 323 F. A’ppx. 726, 728 (11th Cir. 2009) (applying Morgan to exclude ADEA claims). Plaintiff alleges that ITC discriminated and/or retaliated against her when it failed to hire her for the Director of Ministry and Context position (the “Director position”) in 2014. ITC closed the search for that position on July 3, 2014 because the school decided not to fill the position at that time. (Deposition of Temba Mafico (“Mafico Dep.”) 35:13-18, Mar. 20, 2017; Mafico Aff. ¶ 21.) In fact, ITC did not hire anyone for the Director position in 2014. (Deposition of Edward Wimberly (“Wimberly Dep.”) 20:19-23, Mar. 14, 2017; Deposition of Itihari Toure (“Toure Dep.”) 26:15-18, 30:4-8, Mar. 20, 2017.) The limitations period for failure to promote claims begins on the date on which an employee becomes aware of a particular employment decision (see, e.g., Del. State College v. Ricks, 449 U.S. 250, 258 (1980)) or at the time the promotion is denied and another applicant is selected. See Brooks v. CSX Transp., Inc., 555 F. App’x 878, 881 (11th Cir. 2014) (holding that “all of [the plaintiff’s] ADEA and Title VII failure-to-promote claims were time barred”). Because the actions complained of by Plaintiff with respect to the Director position occurred prior to June 11, 2015, those allegations are time barred.3 3 The record reveals that Plaintiff made at least two complaints of discrimination and/or retaliation during the 2014 search process for the Director position. (Pl.’s Dep. 123:12-131:13, Ex. 21, 131:16-135:19, Ex. 22.) Because those complaints triggered Plaintiff’s time to file an EEOC Charge, they also are barred. Case 1:16-cv-00920-LMM-LTW Document 41-2 Filed 05/01/17 Page 12 of 29 13 Plaintiff also alleges that ITC discriminated and/or retaliated against her when it failed to hire her for the Special Programs and Field Placement Coordinator position (the “Coordinator position”). ITC filled that position on July 14, 2014, which means that Plaintiff’s allegations regarding that position are also time barred. (Affidavit of Idell Henderson (“Henderson Aff.”) ¶ 25, Apr. 27, 2017.) Lastly, Plaintiff alleges ITC discriminated and/or retaliated against her when it did not appoint her to teach beyond the spring 2015 semester. Plaintiff’s employment with ITC ended on May 1, 2015 per the terms of her spring 2015 self- terminating teaching appointment. (Deposition of Idell Henderson (“Henderson Dep.” 29:6-16, Mar. 14, 2017; Henderson Aff. ¶ 27.) As such, this claim is also time barred as a matter of law. III. PLAINTIFF’S DISCRIMINATION AND RETALIATION CLAIMS ALSO FAIL BECAUSE THEY ARE UNSUPPORTED BY THE EVIDENCE AND MUST BE DISMISSED AS A MATTER OF LAW. A. Plaintiff Fails To Establish A Prima Facie Case Of Discrimination. Even if Plaintiff’s claims were not already subject to dismissal because of the ministerial exception and the applicable statute of limitations, her claims also fail because there is no evidence to support her allegations. Plaintiff asserts that ITC failed to promote her to two positions – Director of Ministry and Context and Special Programs and the Field Placement Coordinator – because of her age and gender. Case 1:16-cv-00920-LMM-LTW Document 41-2 Filed 05/01/17 Page 13 of 29 14 In the Eleventh Circuit, age and gender discrimination claims relying upon circumstantial evidence are analyzed under the familiar burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny. See Sims v. MVM, Inc., 704 F.3d 1327, 1332 (11th Cir. 2013) (age discrimination); Goodin v. Sec. of Defense, 292 F. App’x 763, 764 (11th Cir. 2008) (gender discrimination). To establish a prima facie case of age and gender discrimination in a failure to promote case, Plaintiff must show that “‘(1) [s]he is a member of a protected class; (2) [s]he was qualified and applied for the promotion; (3) [s]he was rejected despite [her] qualifications, and (4) other equally or less qualified employees who were not members of the protected class were promoted.’” Giles v. BellSouth Telecomms., Inc., 542 F. App’x 756, 760 (11th Cir. 2013) (ADEA); Price v. M&H Valve Co., 177 F. App’x. 1, 12 (11th Cir. 2006) (Title VII). 1. Director of Ministry and Context. As to the Director Position, Plaintiff cannot establish that ITC rejected her despite her qualifications or that another individual outside the protected classes received the promotion because ITC stopped its search for the Director position in July 2014. (Mafico Dep. 35:13-18; Mafico Aff. ¶ 21; Pl.’s Dep. 142:23-25.) ITC did not interview Plaintiff or any other candidates for that position.4 (Mafico Aff. ¶ 4 Plaintiff claims unnamed third parties told her that ITC interviewed someone for the Director position in 2014, but she admits to not having any direct knowledge as to whether ITC interviewed anyone for that position. (Pl.’s Dep. 132:19-133:13.) Case 1:16-cv-00920-LMM-LTW Document 41-2 Filed 05/01/17 Page 14 of 29 15 23.) Although searches for the Director position were reopened in 2015 and 2016, Plaintiff did not reapply. Plaintiff seems to suggest that ITC should have used her 2014 application for the 2015 and 2016 Director searches.5 However, when ITC faculty searches are closed without a selection being made, all candidates are required to resubmit their credentials if the search reopens at a later date. (Mafico Dep. 31:20-24; Henderson Dep. 39:10-24.) Plaintiff knew this; she applied (unsuccessfully) for the Director position in 2011 and resubmitted her application in 2014. (Mafico Dep. 14:16-18; Pl.’s Dep. 97:15-99:13, Ex. 13, 114:3-21, Ex. 18.) Moreover, when ITC opened the 2015 and 2016 Director position searches, ITC advertised publicly for the role and Plaintiff had ample ability to check the online postings and resubmit her application. (Henderson Aff. ¶ 22.) She did not do so. Plaintiff simply cannot establish a prima facie case with respect to the Director position becasue ITC did not reject her for the promotion or select an individual outside the protected classes. See Ayers v. Wal-Mart Corp., No 3:04CV1002-T, Conclusory statements made based upon hearsay statements do not create a genuine issue of material fact. See Plaisance v. Travelers Ins. Co., 880 F. Supp. 798, 804 (N.D. Ga. 1994) (“[I]t is well established that a Title VII plaintiff opposing a motion for summary judgment must present significantly probative evidence on the issue of discrimination to avoid summary judgment. Reliance solely upon speculation and unsubstantiated hearsay constitutes a failure to meet this burden.”). 5 Plaintiff applied for the Director position in 2011 and was not interviewed. (Pl.’s Dep. 97:15-99:13, Ex. 13.) At that time, Plaintiff was 69 years of age. (Henderson Aff. ¶ 20.) A female candidate (57 years of age) was chosen for the position. (Henderson Aff. ¶ 19.) Plaintiff did not complain to ITC that the 2011 hiring process was discriminatory. (Mafico Aff. ¶ 18.) Case 1:16-cv-00920-LMM-LTW Document 41-2 Filed 05/01/17 Page 15 of 29 16 2005 WL 4795035, at *7 (M.D. Ala. Oct. 7, 2005) (plaintiff failed to establish promotion discrimination when no employee was selected for promotion during claimed discrimination periods). Plaintiff’s age and gender discrimination claims with respect to the Director position thus fail as a matter of law. 2. Special Programs and Field Placement Coordinator. Similarly, Plaintiff cannot prove her allegation that ITC’s failure to consider her for the Coordinator position was discriminatory. First, this claim does not appear anywhere in Plaintiff’s Complaint or her antecedent EEOC Charge, rendering it subject to dismissal instanter as a matter of law. See Long v. Kirby, No. 2:11–CV– 00294–RWS–JCF, 2014 WL 1153445, at *21 n.6 (N.D. Ga. Mar. 21, 2014) (quoting Cooper v. S. Co., 390 F.3d 695, 732 (11th Cir. 2004), overruled on other grounds Ash v. Tyson Foods, Inc., 546 U.S. 454, 456-57 (2006)) (“‘Any claims not asserted in the plaintiff’s Complaint are properly dismissed.’”). Second, Plaintiff cannot establish a prima facie case of age or gender discrimination with respect to the Coordinator position. Plaintiff admitted that she did not apply for the Coordinator position because she had no knowledge of the job opening. (Mafico Dep. 17:20-18:2; Pl.’s Dep. 157:20-158:16.) ITC did not post the Coordinator position because there was an urgent need to fill that role before the commencement of the fall 2014 semester. (Mafico Aff. ¶ 28.) Thus, applicable here is the “informal process” exception to the Case 1:16-cv-00920-LMM-LTW Document 41-2 Filed 05/01/17 Page 16 of 29 17 prima facie case job application requirement, which provides that “a plaintiff need not show that she applied for the job if she can show that the employer ‘d[id] not formally announce [the] position, but rather use[d] informal and subjective procedures to identify a candidate.’” Williams v. VWR Int’l LLC¸ No. 16-11541, 2017 WL 1381110, *2 (11th Cir. 2017). Even “under the [“informal process”] exception the plaintiff must still show that the employer had some reason to consider her for the position.” Id. The undisputed evidence shows that ITC had no reason to consider Plaintiff for the Coordinator position. First, Plaintiff only had communicated to ITC her interest in being promoted to faculty positions. (Mafico Aff. ¶ 32.) The Coordinator position was not a faculty position and would not have been a promotion for Plaintiff; it was an administrative staff role. (Mafico Aff. ¶ 36.) Second, ITC needed to fill the Coordinator position with someone who had extensive experience with field placements. Plaintiff did not have extensive experience with field placements, but the individual who ITC selected, Leroy Wright, did.6 (Mafico Aff. ¶¶ 31, 33.) Third, ITC’s published policy regarding job posting “reserves [to ITC the] discretionary right to not post a particular opening,” so it was not unusual (or a violation of ITC policy) that ITC did not post the Coordinator position. (Henderson 6 Wright was 67 years of age at the time he accepted the Coordinator position in July 2014, which undercuts Plaintiff’s allegations that she was not considered for the job because of her age. (Henderson Aff. ¶ 26.) Case 1:16-cv-00920-LMM-LTW Document 41-2 Filed 05/01/17 Page 17 of 29 18 Aff. ¶¶ 24, 28, Ex. 2.) Thus, because Plaintiff cannot establish that ITC had any reason to consider her for the Coordinator position, this claim also fails. 3. Plaintiff’s Disparate Treatment Claims. Plaintiff also alleges that ITC discriminated against her unlawfully on the basis of her age and gender when it elected not to renew her teaching appointment following the spring 2015 semester. To establish her prima facie case of disparate treatment, Plaintiff must show: 1) she is a member of a protected class; 2) she was qualified to continue as a non-tenure track faculty member at ITC; 3) she was subjected to an adverse employment action by ITC; and 4) similarly situated employees outside of the protected classes were treated more favorably. See Trask v. Sec., Dep’t of Veterans Affairs, 822 F.3d 1179, 1191-92 (11th Cir. 2016). ITC does not dispute that Plaintiff is a member of protected classes or that she suffered an adverse employment action when ITC exercised its discretion not to renew her part-time, adjunct, non-tenure track teaching appointment for the fall 2015 semester. But Plaintiff has adduced no evidence that she was qualified to continue in her position given the change in focus for Group Leaders or that any similarly situated faculty member who was male and/or younger in age than Plaintiff was treated more favorably. Dr. Itihari Toure, ITC’s Director of the Quality Enhancement Plan, testified: Q: What are the criteria for the selection of group leaders? Case 1:16-cv-00920-LMM-LTW Document 41-2 Filed 05/01/17 Page 18 of 29 19 A: The specific focus for the seminar leaders that we have was based on the data we received from the A.T.S. exit questionnaire, specifically a question that was asked what am I going to do after ministry – after seminary. And a significant portion, 30 percent of our students felt a lack of prepared [sic] for chaplaincy, Ph.D. work. So this last group of seminar leaders, we particularly looked at persons who had work of pastoral care outside of the church and persons who were intimately involved in completing the Ph.D. application process for specific religious disciplines, such as systemic theology, homiletics, ethics. Q: Is that also the reason why Dr. Jones was not selected to return for the fall 2015 semester? A: Yes. Q: You stated that Dr. Jones was not selected to return for the fall 2015 process. What was that based on? A: It was more based on what I was adding to the selection of seminar leaders, someone who was in private practice or chaplaincy in pastoral care and counseling and someone who was actively engaged in the doctoral submission application process. (Toure Dep. 30:9-31:5; 31:10-17.) Not only did Plaintiff have none of those qualifications at the time of the selection of Group Leaders for the fall 2015 semester, but Plaintiff also has not come forth with any evidence to the contrary. (Pl.’s Dep. 35:20-36:3, Ex. 2.) Moreover, Plaintiff has not produced a scintilla of evidence showing a proper comparator exists for the purpose of establishing her prima facie case. Plaintiff is required to identify males and/or persons younger than her with whom she is similarly situated and who received more favorable treatment to succeed on her claim (i.e., they received new appointments and she did not). “The plaintiff and the Case 1:16-cv-00920-LMM-LTW Document 41-2 Filed 05/01/17 Page 19 of 29 20 employee she identifies as a comparator must be similarly situated ‘in all relevant respects.’” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004). Plaintiff has failed to identify a comparator because she cannot. Adjunct faculty who received Group Leader appointments for the fall 2015 semester filled an identified need based on a survey of students enrolled in the Ministry and Context capstone course. (Toure Dep. 30:9-31:5.) Because Plaintiff did not possess the desired qualifications at the Group Leaders were selected for the fall 2015 semester, she was not offered a new teaching appointment. (Pl.’s Dep. 35:20-25, Ex. 2) “The [ADEA and] Title VII analysis ends when . . . [the] plaintiff is unable to establish a prima facie case.” Richey v. City of Lilburn, 127 F. Supp. 2d 1250, 1259 (N.D. Ga. 1999). Accordingly, Plaintiff’s claim that ITC discriminated unlawfully against her when it exercised discretion not to renew her part-time, adjunct, non-tenure track teaching appointment fails as a matter of law.7 B. Plaintiff’s Retaliation Claims Also Fail On Their Merits. Plaintiff’s claims that ITC retaliated against her unlawfully on the basis of her 7 Plaintiff also claims that her removal from student dissertations as a reader and her role as Chair of the Doctor of Ministry Degree Committee in 2015 was discriminatory. Those claims must be disregarded. Plaintiff only provides her own opinion that those actions were unlawful without any evidence of discriminatory animus. (Pl.’s Dep. 51:9-52:14, 194:10-205:21.) Plaintiff cannot create a genuine issue of material fact simply by complaining in a conclusory fashion. See King, 971 F. Supp. 2d at 1210 (“‘[p]ersonal opinions and conclusory allegations, in the absence of supporting evidence, are insufficient to withstand summary judgment”). Case 1:16-cv-00920-LMM-LTW Document 41-2 Filed 05/01/17 Page 20 of 29 21 age and gender are also meritless. “To successfully establish a prima facie retaliation claim under the ADEA or Title VII, a plaintiff may show that: (1) she engaged in statutorily protected expression; (2) she suffered a materially adverse action; and (3) the adverse actions was causally related to the protected to expression.” Manigault v. Comm’r, Social Sec. Admin., 609 F. App’x 982, 985 (11th Cir. 2015). To establish a causal connection between an adverse employment action and protected activity, a plaintiff must show that the decision-maker was aware of her protected conduct, and that the protected activity and the adverse actions were not wholly unrelated. See Schoppman v. Univ. of S. Fla. Bd. of Trs., No. 12-13357, 2013 WL 2257095, *3-5 (11th Cir. May 22, 2013). “Close temporal proximity between the protected conduct and the adverse action constitutes circumstantial evidence of causation, however, the protected conduct or at least the employers’ discovery of that conduct must immediately precede the adverse action for the negative inference to attach.” Sims v. Coosa County Bd. of Educ., No. 2:07cv704-MEF, 2008 WL 4080769, at *9 (M.D. Ala. Sept. 2, 2008); see also Schechter v. Ga. State Univ., 341 F. App’x. 560, 562-63 (11th Cir. 2009) (citing affirmatively several Eleventh Circuit decisions for the proposition that a three to four month gap is insufficient to establish the causal relation prong in a retaliation case). Case 1:16-cv-00920-LMM-LTW Document 41-2 Filed 05/01/17 Page 21 of 29 22 During the search to fill the Director position in 2014, Plaintiff sent internal e-mails in June and July 2014 to Drs. Mafico and Wimberly that alleged non-specific forms of discrimination. (Pl.’s Dep. 123:12-131:13, Ex. 21, 131:16-135:19, Ex. 22.) Plaintiff also avers that she complained in August 2014 to Idell Henderson, ITC’s Chief Human Resources Officer, about unlawful discrimination.8 (Pl.’s Dep. 49:18- 24, Ex. 4.) But Plaintiff has produced no evidence showing that her internal complaints had any bearing on her application for the Director position in 2014 (because ITC closed the search and hired no one for job in 2014) or any other employment decision about which Plaintiff complains (i.e., the hiring of Leroy Wright for the Coordinator position (for which ITC had no reason to consider Plaintiff), and the removal of Plaintiff from student dissertation reader assignments and her role as Chair of the Doctor of Ministry Degree Committee in 2015). Tellingly, ITC offered and Plaintiff accepted self-terminating, part-time adjunct teaching appointments for the fall 2014 and spring 2015 semesters. Plaintiff maintained a paying faculty position at ITC through May 2015, almost a year after ITC suspended the search for the Director position and filled the Coordinator position. If ITC wanted to retaliate against Plaintiff for her complaints in and around 8 Ms. Henderson has no recollection of Plaintiff ever making a complaint about discrimination or harassment. In fact, Ms. Henderson only recalls Plaintiff stating that “she felt that that [the Director] position should be hers, she wanted that position, and if she did not get it, she intended to sue ITC.” (Henderson Dep. 38:6-22.) Case 1:16-cv-00920-LMM-LTW Document 41-2 Filed 05/01/17 Page 22 of 29 23 summer 2014, it certainly would not have offered to continue her employment into the next academic year. Because Plaintiff cannot establish any nexus between her complaints and any employment action, her retaliation claims similarly fail as a matter of law. C. There Is No Evidence Of Pretext. Even if Plaintiff could establish a prima facie case of age or gender discrimination or retaliation, she cannot demonstrate that ITC’s proffered reasons for any of its employment decisions was pretextual. To carry the burden of showing pretext, Plaintiff “must demonstrate ‘such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence.” Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1265 (11th Cir. 2010). Title VII and the ADEA are not a vehicle for a plaintiff or the court to second-guess the propriety of an employer’s business decisions. See, e.g., Alvarez, 610 F.3d at 1265 (“A plaintiff is not allowed to recast an employer’s proffered nondiscriminatory reasons or substitute his business judgment for that of the employer.”); Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc) (“Provided that the proffered reason is one that might motivate a reasonable employer, an employee must meet that reason head on and rebut it, and the employee cannot succeed by simply quarreling with the wisdom of that reason.”). Case 1:16-cv-00920-LMM-LTW Document 41-2 Filed 05/01/17 Page 23 of 29 24 There is simply no evidence casting doubt on ITC’s decisions with respect to any of the matters about which Plaintiff now complains. Although Plaintiff may not agree with ITC’s decisions, her unsubstantiated personal speculation that ITC’s employment actions were motivated by age or gender does not create a genuine issue of material fact for purposes of summary judgment.9 See Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1376 (11th Cir. 1996) (“‘Conclusory allegations of discrimination, without more, are not sufficient to raise an inference of pretext or intentional discrimination where [an employer] has offered . . . extensive evidence of legitimate, non-discriminatory reasons for its actions.’”). Accordingly, this Court should enter summary judgment in favor of ITC on Plaintiff’s age and gender discrimination and retaliation claims as a matter of law. IV. ITC DID NOT BREACH PLAINTIFF’S EMPLOYMENT CONTRACT. Plaintiff’s employment with ITC was governed at all times by self-terminating appointment letters that outlined the terms of the parties’ relationship during the applicable semester or academic year of appointment. (Henderson Aff. ¶ 29.) The appointment letters were not issued for successive semi-annual terms. (Henderson Aff. ¶ 30.) In fact, on the face of each appointment letter issued to Plaintiff appeared the beginning and end date of the appointment for each semester or academic year. 9 Plaintiff’s allegations of gender-based animus are further belied by her apparent belief that several female ITC employees were out to get her. (Pl.’s Dep. 131:16-135:19, Ex. 22.) Case 1:16-cv-00920-LMM-LTW Document 41-2 Filed 05/01/17 Page 24 of 29 25 (Henderson Aff. ¶ 31.) ITC issued Plaintiff a final appointment to serve as a Group Leader for Ministry and Context for the spring 2015 semester (January 1, 2015 to May 1, 2015). (Henderson Aff. ¶ 32.) As with every other semester appointment ever held by Plaintiff, when the semester ended, so did Plaintiff’s appointment. ITC did not renew Plaintiff’s appointment for the fall 2015 semester. Under Georgia law, after an agreement expires by its terms, the agreement is no longer enforceable. See Lovell v. Osteomedics, Inc., 272 Ga. 122, 527 S.E.2d 541 (2000) (holding that after the expiration of an agreement, the terms of that agreement were no longer enforceable); Walden v. Smith, 249 Ga. App. 32, 34. 546 S.E.2d 808, 810 (2001) (holding that after an agreement expired, no enforceable contract existed). Plaintiff admitted on deposition that she did not, as a matter of law, have a job with ITC after the spring 2015 semester. (Pl.’s Dep. 165:8-14.) As such, Plaintiff cannot show that her letters of appointment were anything other than self- terminating, non-renewable contracts for applicable semesters or years, and her breach of contract claim fails as a matter of law. CONCLUSION Because Plaintiff cannot establish that there are any genuine issues of material fact in this case, ITC respectfully requests that this Court GRANT summary judgment in its favor on all of Plaintiff’s claims as set forth in her Complaint in their entirety, with prejudice, as a matter of law. Case 1:16-cv-00920-LMM-LTW Document 41-2 Filed 05/01/17 Page 25 of 29 26 This 1st day of May, 2017. Respectfully submitted, HOLLAND & KNIGHT LLP s/ Joshua I. Bosin Joshua I. Bosin Georgia Bar No. 143054 Regions Plaza, Suite 1800 1180 West Peachtree Street Atlanta, Georgia 30309 Telephone: (404) 817-8500 Facsimile: (404) 881-0470 E-Mail: joshua.bosin@hklaw.com Counsel for Defendant Interdenominational Theological Center, Inc. Case 1:16-cv-00920-LMM-LTW Document 41-2 Filed 05/01/17 Page 26 of 29 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION BETTY R. JONES, ) ) Plaintiff, ) ) CIVIL ACTION FILE NO. v. ) ) 1:16-CV-00920-LMM-LTW INTERDENOMINATIONAL ) THEOLOGICAL CENTER, INC., ) ) Defendant. ) ) LR 7.1(D) FONT COMPLIANCE CERTIFICATION The undersigned counsel certifies that the within and foregoing DEFENDANT INTERDENOMINATIONAL THEOLOGICAL CENTER, INC.’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT was prepared using Times New Roman 14 point font in accordance with Local Rule 5.1 of the United States District Court for the Northern District of Georgia. This 1st day of May, 2017. s/ Joshua I. Bosin Joshua I. Bosin Georgia Bar No. 143054 Case 1:16-cv-00920-LMM-LTW Document 41-2 Filed 05/01/17 Page 27 of 29 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION BETTY R. JONES, ) ) Plaintiff, ) ) CIVIL ACTION FILE NO. v. ) ) 1:16-CV-00920-LMM-LTW INTERDENOMINATIONAL ) THEOLOGICAL CENTER, INC., ) ) Defendant. ) ) CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have this day caused to be served a true and correct copy of the foregoing DEFENDANT INTERDENOMINATIONAL THEOLOGICAL CENTER, INC.’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT with the Clerk of Court using the CM/ECF system, which will automatically send e-mail notification of such filing to the following Counsel of Record: Gregory T. Bailey, Esq. Gregory T. Bailey & Associates 5682 Palazzo Way, Suite 101 Douglasville, Georgia 30134 E-Mail: attygregtbailey@msn.com Case 1:16-cv-00920-LMM-LTW Document 41-2 Filed 05/01/17 Page 28 of 29 This 1st day of May, 2017. s/ Joshua I. Bosin Joshua I. Bosin Georgia Bar No. 143054 #49508290_v6 Case 1:16-cv-00920-LMM-LTW Document 41-2 Filed 05/01/17 Page 29 of 29 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION BETTY R. JONES, ) ) Plaintiff, ) ) CIVIL ACTION FILE NO. v. ) ) 1:16-cv-00920-LMM-LTW INTERDENOMINATIONAL ) THEOLOGICAL CENTER, INC., ) ) Defendant. ) ) AFFIDAVIT OF TEMBA MAFICO 1. My name is Temba Mafico. The matters testified to in this Affidavit are of my own personal knowledge. I am over the age of 18 and competent to testify thereto. I know that this Affidavit is to be used for all lawful purposes in connection with the above-captioned civil action. 2. I have worked at the Interdenominational Theological Center, Inc. (“ITC”) in many capacities since 1988. 3. From 2003 to 2011, I served as ITC’s Vice Provost. Case 1:16-cv-00920-LMM-LTW Document 41-3 Filed 05/01/17 Page 1 of 8 2 4. From 2011 until 2015, I served as ITC’s Provost. 5. I am currently the Distinguished Professor of Old Testament/Hebrew Bible at ITC. 6. I hold a Ph.D. from Harvard University in Old Testament/Hebrew Bible and Ancient Biblical Language. 7. ITC is a religious school; it has no secular purpose. 8. ITC’s sole mission is to educate graduate students to become spiritual leaders in the church and global community. 9. ITC is a historically black graduate theological school consisting of a Christian Africentric ecumenical consortium of seminaries and fellowships with a mission to educate students to become spiritual leaders in the Christian church and its communities. Case 1:16-cv-00920-LMM-LTW Document 41-3 Filed 05/01/17 Page 2 of 8 3 10. Several religious denominations are represented at ITC through their member seminaries: United Methodist, Baptist, African Methodist Episcopal, Christian Methodist Episcopal, and Church of God in Christ. 11. ITC is accredited by the Commission on Accrediting of the Association of Theological Schools in the United States and Canada to award masters and doctorate degrees. 12. ITC offers four degree programs: Master of Divinity (M.Div.), Master of Arts in Christian Education (M.A.C.E.), Doctor of Ministry (D.Min.), and Doctor of Theology in Pastoral Counseling (Th.D.). 13. The curricula for all degree programs at ITC focus on four areas: biblical literature and languages; history, ethics and theology; persons, society and culture; and church and its ministries. 14. The M.Div degree is designed to integrate theological studies and the work of ministry so that theory and practice, academy, and parish become complementary components of the educational process. Case 1:16-cv-00920-LMM-LTW Document 41-3 Filed 05/01/17 Page 3 of 8 4 15. Ministry and Context I and II require coursework and an internship placement (in ecumenical organizations, local parishes, social agencies, military bases, and educational or other institutions related to the helping professions) that assist students to evidence proficiency in preparedness for entering the world of ministry after careful and intentional preparation. 16. Ministry and Context I and II are part of the mandatory curriculum of the capstone course for the M.Div. degree at ITC. 17. In January 2011, ITC commenced a search for the Director of Ministry and Context position (the “Director position”), a full-time, tenure track faculty position that was to be vacated at the end of the spring 2011 semester. 18. Plaintiff never complained to ITC that the hiring process for the Director position in 2011 was discriminatory. 19. In March 2014, the Director position was still a full-time, tenure track faculty position. Case 1:16-cv-00920-LMM-LTW Document 41-3 Filed 05/01/17 Page 4 of 8 5 20. At the time the search committee for the Director position was formed in 2014, the Director position had neither been posted nor advertised, but a job description for the position was circulated to the search committee members. 21. On July 3, 2014, I informed the search committee and additional academic leaders of ITC that I had suggested ‒ and Dr. Wimberly had agreed ‒ that the search for a new Director of Ministry and Context be suspended effective immediately. 22. ITC closed the search for the Director position on July 3, 2014. 23. As of July 3, 2014, ITC had interviewed no one for the Director positon. ITC did not interview Plaintiff or any other candidates for the Director position in 2014. 24. As part of their degree programs, ITC students are required to participate in off-campus student internship placements. 25. Historically, ITC had not designated an individual to supervise those placements, except for those positions held by the institution’s Ministry and Context students (which were coordinated by the Director of Ministry and Context). Case 1:16-cv-00920-LMM-LTW Document 41-3 Filed 05/01/17 Page 5 of 8 6 26. To streamline the placement process campus-wide, including for the Ministry and Context internships, ITC’s leadership decided that for academic year 2014-2015, it would create the interim, non-faculty, administrative position of Special Programs and Field Placement Coordinator (the “Coordinator position”). 27. The search for the Coordinator position began in summer 2014. 28. ITC did not post the Coordinator position because there was an urgent need to fill that role before the commencement of the fall 2014 semester. 29. ITC needed to fill the Coordinator position with an individual who had extensive experience with field placements. 30. Two candidates were considered for the Coordinator positon: Marcus Dixon and Leroy Wright. 31. Dr. Wright had extensive experience with field placements. Case 1:16-cv-00920-LMM-LTW Document 41-3 Filed 05/01/17 Page 6 of 8 7 32. Plaintiff only had communicated her interest to ITC in being promoted to faculty positions. 33. Plaintiff did not have extensive experience with field placements. 34. For the entirety of her teaching career at ITC, Plaintiff was a member of the institution’s Ministry and Context adjunct faculty. 35. The hiring of ITC’s faculty is entirely based upon what its leadership feels is required to accomplish its religious mission. 36. The Coordinator position was not a faculty position and would not have been a promotion for Plaintiff; it was an administrative staff role. Case 1:16-cv-00920-LMM-LTW Document 41-3 Filed 05/01/17 Page 7 of 8 FURTHER AFFIANT SAYETH NAUGHT. Rev. Temba Mafico, Ph.D. Sworn and subscribed before me this IaJ'A^Y of May, 2017. Jl- 'L’QJdiyfj, OkMrb- Notary Public My commission expires: Case 1:16-cv-00920-LMM-LTW Document 41-3 Filed 05/01/17 Page 8 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION BETTY R. JONES, ) ) Plaintiff, ) ) CIVIL ACTION FILE NO. v. ) ) 1:16-cv-00920-LMM-LTW INTERDENOMINATIONAL ) THEOLOGICAL CENTER, INC., ) ) Defendant. ) ) AFFIDAVIT OF ITIHARI TOURE 1. My name is Itihari Toure. The matters testified to in this Affidavit are of my own personal knowledge. I am over the age of 18 and competent to testify thereto. I know that this Affidavit is to be used for all lawful purposes in connection with the above-captioned civil action. 2. I received an Ed.D. from the University of Phoenix in 2007. 3. I have been a member of the faculty at the Interdenominational Theological Center, Inc. (“ITC”) since 1993. Case 1:16-cv-00920-LMM-LTW Document 41-4 Filed 05/01/17 Page 1 of 4 2 4. In 2013, I became the Director of the Quality Enhancement Plan and the accreditation liaison for the Southern Association of Colleges and Schools Commission on Colleges. I currently serve in that role. 5. Foundations for Ministry, Elements of Ministry, and Ministry and Context comprise a basic three-phase capstone course required of all candidates for ITC’s M.Div. degree. 6. The M.Div. capstone course introduces students to holistic, theological education for Christian ministry for the 21st Century through an interdisciplinary Christian perspective with a focus on the integration of the total curriculum and the awareness of lifelong learning as a prerequisite for competent, committed, and compassionate religious leadership. 7. Foundations for Ministry normally occurs at the beginning of a student’s first year, Elements of Ministry during the second semester of the middler (second) year, and Ministry and Context I and II during the senior year. Case 1:16-cv-00920-LMM-LTW Document 41-4 Filed 05/01/17 Page 2 of 4 3 8. An educational modeling shift for Ministry and Context resulted from ITC’s reevaluation of the Ministry and Context program in connection with the school’s institutional accreditation review. 9. The curricular reevaluation process for Ministry and Context began during academic year 2013-2014. 10. As part of its Quality Enhancement Plan (required by ITC’s accrediting agency), ITC gathered data and conducted an assessment of student learning outcomes for participants in the program. 11. The evaluation revealed that Ministry and Context in its then-current iteration needed to be reconfigured. 12. ITC committed to undertake that work during academic year 2014-2015. Case 1:16-cv-00920-LMM-LTW Document 41-4 Filed 05/01/17 Page 3 of 4 FURTHER AFFIANT SAYETH NAUGHT. Sworn and subscribed before me this^^ay of April, 2017. A Pjarofa. NotaryPublic My commission expires: Itihari Toure, Ed.D. Case 1:16-cv-00920-LMM-LTW Document 41-4 Filed 05/01/17 Page 4 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION BETTY R. JONES, ) ) Plaintiff, ) ) CIVIL ACTION FILE NO. v. ) ) 1:16-cv-00920-LMM-LTW INTERDENOMINATIONAL ) THEOLOGICAL CENTER, INC., ) ) Defendant. ) ) AFFIDAVIT OF IDELL HENDERSON 1. My name is Idell Henderson. The matters testified to in this Affidavit are of my own personal knowledge. I am over the age of 18 and competent to testify thereto. I know that this Affidavit is to be used for all lawful purposes in connection with the above-captioned civil action. 2. I have worked at the Interdenominational Theological Center, Inc. (“ITC”) in the Human Resources Department since 2012. 3. I have served as ITC’s Chief Human Resources Officer since 2014. Case 1:16-cv-00920-LMM-LTW Document 41-5 Filed 05/01/17 Page 1 of 32 2 4. As ITC’s Chief Human Resources Officer, I oversee the day-to-day operations of ITC’s human resources function, which includes recruitment, benefits, payroll, employee relations, development, and performance management. 5. ITC’s Faculty Handbook contains information about policies and procedures related to ITC’s faculty. True and correct copies of relevant portions of ITC’s Faculty Handbook are attached hereto as Exhibit “1.” Exhibit 1 was applicable through the end of Plaintiff’s employment with ITC even though the cover page provides that it only applied through 2013. To date, ITC continues to use this version of the Faculty Handbook. 6. ITC hires its part-time, non-tenure track adjunct faculty on a semester or academic year basis. 7. Like appointment letters for other members of the faculty, appointment letters for part-time, non-tenure track adjunct faculty, if issued, specify the terms and conditions of employment, including the type, rank, salary, primary duties, and the term of appointment. Case 1:16-cv-00920-LMM-LTW Document 41-5 Filed 05/01/17 Page 2 of 32 3 8. The hiring of part-time, non-tenure track adjunct faculty is based upon what ITC’s leadership feels is required to accomplish the school’s religious mission. 9. ITC has implemented equal employment opportunity (“EEO”) policies that are posted internally and disseminated to faculty through the Faculty Handbook. 10. ITC’s EEO policies prohibit, among other things, discrimination based on age and gender, as well as retaliation. 11. ITC’s EEO policies have been in place through all time periods relevant to this action. 12. ITC provides training to faculty and administration regarding EEO matters. 13. It is and has been ITC’s practice to comply with all civil rights statutes, including those prohibiting unlawful discrimination and retaliation. 14. Plaintiff began her employment at ITC as a Facilitator for the Ministry and Context course in academic year 2005-2006. Case 1:16-cv-00920-LMM-LTW Document 41-5 Filed 05/01/17 Page 3 of 32 4 15. Plaintiff consistently taught Ministry and Context at ITC through the spring 2015 semester in a variety of positions, including Adjunct Assistant Professor, Adjunct Instructor, Adjunct Professor, and Group Leader. 16. While Plaintiff was considered a member of the faculty at ITC, none of Plaintiff’s positions at ITC were tenure track or tenured; Plaintiff’s teaching positions were always part-time, adjunct, non-tenure track roles. 17. For most of the academic semesters or years that Plaintiff taught at ITC, the school provided to Plaintiff a letter confirming her self-terminating, non-renewable teaching appointment at ITC. 18. For some of the academic semesters or years that Plaintiff taught at ITC, the school did not provide to Plaintiff a letter confirming her self-terminating, non- renewable teaching appointment at ITC, but the terms and conditions thereof remained the same. 19. Dr. Beverly Wallace, a female candidate (age 57), was chosen to fill the Director of Ministry and Context position (the “Director position”) in 2011. Case 1:16-cv-00920-LMM-LTW Document 41-5 Filed 05/01/17 Page 4 of 32 5 20. At the time Plaintiff applied for the Director position in 2011, she was 69 years old. 21. ITC reopened the search for the Director position in 2015 and 2016. 22. When ITC reopened the 2015 and 2016 Director position searches, ITC advertised publicly for the role and Plaintiff had ample ability to check the online postings and resubmit her application. 23. From the time it became open in 2014 to date, ITC has not filled the Director position. 24. ITC reserves its right to not post a particular position opening for staff roles. 25. ITC offered Leroy Wright the Special Programs and Field Placement Coordinator position (the “Coordinator position”) on July 14, 2014, and he began his employment at ITC in that role in August 2014. Case 1:16-cv-00920-LMM-LTW Document 41-5 Filed 05/01/17 Page 5 of 32 6 26. At the time Dr. Wright accepted the Coordinator position in July 2014, he was 67 years old. 27. Plaintiff’s employment with ITC ended on May 1, 2015 per the terms of her spring 2015 self-terminating teaching appointment. 28. ITC’s published policy regarding job posting “reserves [to ITC the] discretionary right to not post a particular opening.” It was not unusual (or a violation of ITC policy) that ITC did not post the Coordinator position. True and correct copies of relevant portions of ITC’s Employee Handbook are attached hereto as Exhibit “2.” 29. Plaintiff’s employment with ITC was governed at all times by self-terminating appointment letters that outlined the terms of the parties’ relationship during the applicable semester or academic year of appointment. 30. The appointment letters issued to Plaintiff were not for successive semi- annual terms. Case 1:16-cv-00920-LMM-LTW Document 41-5 Filed 05/01/17 Page 6 of 32 7 31. On the face of each appointment letter issued to Plaintiff appeared the beginning and end date of the appointment for each semester or academic year. 32. ITC issued Plaintiff a final appointment to serve as a Group Leader for Ministry and Context for the spring 2015 semester (January 1, 2015 to May 1, 2015). Case 1:16-cv-00920-LMM-LTW Document 41-5 Filed 05/01/17 Page 7 of 32 FURTHER AFFIANT SAYETH NAUGHT. Idell Henderson Sworn and subscribed before me this^^day of April, 2017. / . Notar}7 Public My commission expires: Case 1:16-cv-00920-LMM-LTW Document 41-5 Filed 05/01/17 Page 8 of 32 EXHIBIT 1 Case 1:16-cv-00920-LMM-LTW Document 41-5 Filed 05/01/17 Page 9 of 32 Case 1:16-cv-00920-LMM-LTW Document 41-5 Filed 05/01/17 Page 10 of 32 Case 1:16-cv-00920-LMM-LTW Document 41-5 Filed 05/01/17 Page 11 of 32 Case 1:16-cv-00920-LMM-LTW Document 41-5 Filed 05/01/17 Page 12 of 32 Case 1:16-cv-00920-LMM-LTW Document 41-5 Filed 05/01/17 Page 13 of 32 Case 1:16-cv-00920-LMM-LTW Document 41-5 Filed 05/01/17 Page 14 of 32 Case 1:16-cv-00920-LMM-LTW Document 41-5 Filed 05/01/17 Page 15 of 32 Case 1:16-cv-00920-LMM-LTW Document 41-5 Filed 05/01/17 Page 16 of 32 Case 1:16-cv-00920-LMM-LTW Document 41-5 Filed 05/01/17 Page 17 of 32 Case 1:16-cv-00920-LMM-LTW Document 41-5 Filed 05/01/17 Page 18 of 32 Case 1:16-cv-00920-LMM-LTW Document 41-5 Filed 05/01/17 Page 19 of 32 Case 1:16-cv-00920-LMM-LTW Document 41-5 Filed 05/01/17 Page 20 of 32 Case 1:16-cv-00920-LMM-LTW Document 41-5 Filed 05/01/17 Page 21 of 32 Case 1:16-cv-00920-LMM-LTW Document 41-5 Filed 05/01/17 Page 22 of 32 Case 1:16-cv-00920-LMM-LTW Document 41-5 Filed 05/01/17 Page 23 of 32 Case 1:16-cv-00920-LMM-LTW Document 41-5 Filed 05/01/17 Page 24 of 32 Case 1:16-cv-00920-LMM-LTW Document 41-5 Filed 05/01/17 Page 25 of 32 Case 1:16-cv-00920-LMM-LTW Document 41-5 Filed 05/01/17 Page 26 of 32 Case 1:16-cv-00920-LMM-LTW Document 41-5 Filed 05/01/17 Page 27 of 32 Case 1:16-cv-00920-LMM-LTW Document 41-5 Filed 05/01/17 Page 28 of 32 Case 1:16-cv-00920-LMM-LTW Document 41-5 Filed 05/01/17 Page 29 of 32 EXHIBIT 2 Case 1:16-cv-00920-LMM-LTW Document 41-5 Filed 05/01/17 Page 30 of 32 f Inter de>om i n-at i o n a c. THcBXSGICftt. CENTER INTERDENOMINATIONAL THEOLOGICAL CENTER PROFESSIONAL AND SUPPORT STAFF NON-INSTRUCTIONAL STAFF PERSONNEL MANUAL ( Revised Human Resources January 2010 Case 1:16-cv-00920-LMM-LTW Document 41-5 Filed 05/01/17 Page 31 of 32 ITC aims to create a supportive, open and informed environment in which anyone with a life- threatening illness will feel free to come forward in the knowledge that they will be met with respect, understanding and care. Through counseling and education, ITC will attempt to alleviate concerns of employees who feel uncomfortable working with a colleague who they suspect or determine to have a life-threatening illness. ITC recognizes that a supportive and caring response from Directors and coworkers is an important factor in maintaining the quality of life for an employee with a life-threatening illness. ITC, therefore, expects that all employees will be sensitive to the needs of colleagues facing such illnesses. Directors should become cognizant of the special needs of such employees, assisting them with personal support and referrals to appropriate health and community services. The institution will, upon request, provide reasonable accommodations to employees with life- threatening illnesses to enable them to continue work. The accommodations might include, for example, flexible schedules to accommodate medical appointments or the exclusion of tasks that require physical exertion. This policy is neither exhaustive nor exclusive. ITC is committed to taking all other actions necessary to ensure equal employment opportunity for persons with disabilities in accordance with the ADA and all other applicable federal, state, and local laws. Ill Job Posting and Employee Referrals ITC provides employees an opportunity to indicate their interest in open positions and advancement within the organization according to their skills and experience. While ITC reserves its discretionary right to not post a particular opening. In general, notices of all regular, full-time job openings are posted. Job openings will be posted on the employee bulletin board for 7 days. Each job posting notice will include the dates of the posting period, job title, department, location, grade level, job summary, essential duties, and qualifications (required skills and abilities). To apply for an open position, employees must not be on probation and should submit a job posting application to the Human Resources Office listing job-related skills and accomplishments. It should also describe how their current experience with ITC and prior work experience and/or education qualifies them for the position. ITC recognizes the benefit of developmental experiences and encourages employees to talk with their supervisors about their career plans. Supervisors are encouraged to support employees' efforts to gain experience and advance within the organization. An applicant's supervisor may be contacted to verify performance, skills, and attendance. Any staffing limitations or other circumstances that might affect a prospective transfer may also be discussed. Job posting is a way to inform employees of openings and to identify qualified and interested applicants who might not otherwise be known to the hiring Director. Other recruiting sources may also be used to fill open positions in the best interest of the organization. Revised Human Resources January 2010 14 Case 1:16-cv-00920-LMM-LTW Document 41-5 Filed 05/01/17 Page 32 of 32