MADELINE HUGHES HAIKALA, District Judge.
Plaintiff Catherine E. Brooks formerly worked as a program manager for the Jefferson County Department of Human Resources. According to Ms. Brooks, while she was an employee of the Department, her supervisors discriminated against her on the basis of her race, sex, and age and retaliated against her after she protested the purportedly unlawful treatment of a co-worker. Ms. Brooks contends that the Department and some of its employees violated her rights under the following statutes: Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981; 42 U.S.C. § 1983; and the Age Discrimination in Employment Act of 1967 (ADEA).
Defendants Jefferson County Department of Human Resources, State of Alabama Department of Human Resources, Nancy Buckner, Amanda Rice, and Angela McClintock ask the Court to enter summary judgment on all of Ms. Brooks's claims.
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Rule 56 "mandates the entry of summary judgment after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The moving party bears the initial burden of showing the Court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004) (citing Celotex, 477 U.S. at 323). "When a moving party has discharged its burden, the non-moving party must then `go beyond the pleadings,' and by its own affidavits, or by `depositions, answers to interrogatories, and admissions on file,' designate specific facts showing that there is a genuine issue for trial." Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995) (quoting Celotex, 477 U.S. at 324).
When considering a summary judgment motion, the Court must view the evidence in the record in the light most favorable to the non-moving party. Hill v. Wal-Mart Stores, Inc., 510 Fed. Appx. 810, 813 (11th Cir. 2013). "The court need consider only the cited materials, but it may consider other materials in the record." Fed. R. Civ. P. 56(c)(3).
Ms. Brooks worked for the Jefferson County Department of Human Resources from 2001 until 2010. She was a program supervisor between 2005 and 2010. (Doc. 35-2). In March 2006, Ms. Brooks received a written warning from her direct supervisor, Terry Beasley, for "insubordination: failure to follow a directive." (Doc. 35-2, pp. 15-16). Nine months later, Ms. Brooks received an official reprimand from Beasley for "insubordination" and "failure to perform job properly." (Doc. 35-4, pp. 3-6).
The record concerning Ms. Brooks's job performance in 2007 is unremarkable. On June 18, 2008, Ms. Brooks's immediate supervisor, Catherine Denard, told Ms. Brooks that Angela McClintock wanted Margaret Moore, another employee of the Department, "written up." Ms. Brooks, Ms. Moore's direct supervisor, thought that Ms. Moore's work was satisfactory. (Doc. 31-2, p. 88). Ms. Brooks was unwilling to follow Ms. Denard's instruction. She told Ms. Denard that the State of Alabama's personnel policies do not permit supervisors to write up an employee for something she did not do. (Doc. 31-2, pp. 91, 96). In response, Ms. Denard asked Ms. Brooks to go with her to Ms. McClintock's office to discuss the matter. Along the way, Ms. Brooks collapsed and was hospitalized. (Doc. 31-2, p. 90). According to Department records, Ms. Moore received an official warning on July 24, 2008, for failure to perform job and insubordination. (Doc. 35-6, p. 3).
On July 2, 2008, Ms. Denard issued an official reprimand to Ms. Brooks for insubordination, failure to follow an order, disobedience, and failure to submit to authority as shown by demeanor and words, and disruptive conduct. (Doc. 35-3, pp. 4-5). According to the reprimand, Ms. Brooks refused to oversee a unit whose supervisor was about to take maternity leave. The official reprimand reads:
(Doc. 35-3, pp. 4-5).
On July 27, 2008, Ms. Brooks submitted to Ms. Denard a memorandum entitled "Rebuttal to Reprimand" regarding "Wrongful Administration of a Personnel Action." (Doc. 35-3, p. 10-11). Ms. Brooks stated the following in her rebuttal:
(Doc. 35-3, pp. 10-11) (emphasis in original).
As a result of the July 2, 2008 reprimand, the Department deducted seven points from Ms. Brooks's responsibility score on her September 17, 2008 Employee Performance Appraisal. (Doc. 31-4, pp. 35-37). Ms. Denard and Ms. McClintock signed the appraisal. (Id.).
On September 4, 2008, Ms. Brooks filed an EEOC charge of discrimination against the Department. (Doc. 15-1). The document states:
(Id.). When completing the EEOC form, Ms. Brooks checked the boxes labeled "Retaliation" and "Age" under the heading "Discrimination Based On." (Id.).
On September 11, 2008, the EEOC issued a Notice of Charge of Discrimination to Ms. Patricia D. Muscolino, Human Resources Director of the Jefferson County Department of Human Resources. (Doc. 31-4, p. 38-40). The notice stated that Ms. Brooks had filed a charge of employment discrimination under Title VII of the Civil Rights Act and the Age Discrimination in Employment Act. The Notice instructed Ms. Muscolino to provide a statement of the Department's position with respect to Ms. Brooks's charge. (Id.). On May 5, 2010, the EEOC issued a Dismissal and Notice of Rights, which stated:
(Doc. 15-1, p. 2).
Ms. Brooks filed this action on August 2, 2010. She alleges that the defendants violated Title VII, § 1981, § 1983, the ADEA, and the ADA. (Doc. 14). Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the defendants asked the Court to dismiss Ms. Brooks's amended complaint for failure to state a claim. (Doc. 15). After the parties briefed the motion, the presiding judge, Chief Magistrate Judge Paul Greene, recommended that the district court dismiss the following claims with prejudice:
(Doc. 18, p. 14). The district court adopted Judge Greene's Report and Recommendation. (Doc. 19).
Following discovery, the defendants filed a motion for summary judgment. (Doc. 31). In support of the motion, the defendants submitted a brief and a collection of evidentiary materials that includes affidavits, deposition testimony, and unverified copies of some of Ms. Brooks's employment records. (Docs. 31-1 th. 31-9). Ms. Brooks filed a brief in opposition to the defendants' motion (Doc. 35) and submitted evidentiary materials, including unverified copies of some of her employment records, unverified copies of EEOC charges that other Department employees purportedly have filed, and unverified excerpts from the Department's Disciplinary Action Status Report. (Docs. 35-1 th. 35-7).
On this record, the Court considers the defendants' summary judgment
A plaintiff may establish a claim of discrimination "through direct evidence, circumstantial evidence, or through statistical proof." Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1274 (11th Cir. 2008). Ms. Brooks offers only circumstantial evidence of discrimination,
Under the McDonnell Douglas scheme, Ms. Brooks first has the burden to 411 U.S. at 802. Such evidence must be "adequate to create an inference that an employment action was based on a[n] [illegal] discriminatory criterion." Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 358 (1977). If Ms. Brooks establishes a prima facie case, then the Court presumes that her employer acted illegally unless her employer articulates a legitimate, non-discriminatory reason for its action. Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010). The burden then shifts back to Ms. Brooks to produce evidence that shows that her employer's justification is a pretext for discrimination. Id.
To establish a prima facie case of discrimination, whether under the ADEA, Title VII, or § 1983, Ms. Brooks must show that (1) she is a member of a protected class, (2) she was subjected to an adverse employment action, (3) her employer treated similarly situated employees outside the class more favorably, and (4) she was qualified to do her job. Brooks v. CSX Transp., Inc., 2014 WL 480382, at *4 (11th Cir. Feb. 7, 2014).
Defendants do not dispute that Ms. Brooks has established that she is a black female over the age of 40 who was qualified for the job she held at the Department. Defendants contend, however, that Ms. Brooks cannot 1) prove that she suffered an adverse action or 2) identify a similarly situated employee outside the class that was treated more favorably than her. (Doc. 31, p. 13).
Defendants argue that because Ms. Brooks did not receive a reduction in pay after the allegedly discriminatory reprimand on July 2, 2008, and subsequent performance appraisal on September 17, 2008, but instead, received a pay raise, she did not suffer an adverse employment action. (Doc. 31, pp. 13-14). In her affidavit, Ms. Darlene Poole, Program Manager for the Jefferson County Department of Human Resources, states that the July 2, 2008 reprimand produced a seven point deduction on Ms. Brooks's annual evaluation. (Doc. 31-8, p. 2). As a result, Ms. Brooks's overall score fell from 31.1 (Exceeds Standards) to 24.1 (Meets Standards), qualifying Ms. Brooks for a one-step salary increase rather than a two-step salary increase. "Therefore, her reprimand did lower her annual raise amount. . . ." (Id.).
The Eleventh Circuit has held that a decrease in a pay raise is an adverse employment action. In Gillis v. Georgia Department of Corrections, the plaintiff received a "met expectations" performance evaluation, which entitled her to a three percent raise, rather than an "exceeded expectations" evaluation, which would have entitled her to a five percent raise. 400 F.3d 883, 884-85 (11th Cir. 2005). The district court concluded that because Gillis received a pay raise, even though it was a smaller raise than she would have received had her performance evaluation been more favorable, she did not suffer an adverse employment action. The Eleventh Circuit reversed the district court and held that a poor performance evaluation that directly results in the denial of a pay raise affects an employee's compensation and thus constitutes an adverse employment action under Title VII. Id. at 888. Therefore, the Court concludes that Ms. Brooks has produced sufficient evidence of an adverse employment action to establish a prima facie case of discrimination; however, more is required before the burden shifts to the defendants.
To establish a prima facie case for discrimination, Ms. Brooks must identify a similarly situated employee who is not a member of Ms. Brooks's class who the Department treated more favorably than her. The United States Supreme Court has recognized that even if a plaintiff is guilty of misconduct for which her employer might legitimately discipline her, the plaintiff may establish a claim of unlawful discrimination if her employer treated other employees outside of her protected class more favorably when the comparator employees engaged in the same misconduct. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 282-83 (1976). The comparators must be similarly situated to the plaintiff "in all relevant respects," Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997), to "prevent courts from second-guessing employers' reasonable decisions." McCann v. Tillman, 526 F.3d 1370, 1373 (11th Cir. 2008) (quotation marks omitted). "The most important factors in disciplinary context are the nature of the offenses committed and the nature of the punishment imposed." Maynard v. Board of Regents of Div. of Univ. of Fla. Dep't of Educ., 342 F.3d 1281, 1289 (11th Cir. 2003) (quotation omitted).
Ms. Brooks contends that Toney Hunter is a similarly situated employee who the Department treated more favorably than her. Mr. Hunter is a black male employee who is under the age of 40, so he potentially may serve as a comparator for purposes of Ms. Brooks's age and gender discrimination claims. (Doc. 31-3, p. 147).
Ms. Brooks acknowledged that she had never seen Mr. Hunter's personnel file, but she believes she would know if he had been subject to any type of adverse job action because Mr. Hunter confided in her. (Doc. 31-2, p. 100). Ms. Brooks introduced Department records that indicate that on September 4, 2008, Ms. Denard issued a warning to Mr. Hunter for "Failure to perf/Safety." (Doc. 35-6, p. 4). The records are excerpts from a "Jefferson County DHR Disciplinary Action Status Report." The report lists, among other things, the name and division of each employee who is disciplined, the name of the employee's supervisor, the type of disciplinary action taken, and the type of violation. (Doc. 35-6). The chart distinguishes between "Failure to perf/Safety" violations and "Failure to perf/Insub" violations. The report does not provide details about the incidents giving rise to the disciplinary action.
Besides Mr. Hunter's alleged similar conduct for which he purportedly was not disciplined, Ms. Brooks contends that Mr. Hunter's work conditions generally were more favorable than hers. She explained that when Mr. Hunter "complained that he didn't want to supervise Meredith," Mr. Hunter's work was "dumped on me." (Doc. 31-3, p. 116). Ms. Brooks admitted that she was not present when Mr. Hunter purportedly refused to manage one of his units, but "he told me." (Doc. 31-3, p. 118). When asked why Mr. Hunter did not want to supervise one of his units, Ms. Brooks testified that "there had been a child death, and . . . he was the supervisor during that time." (Doc. 31-3, p. 116).
Ms. Brooks's general allegations of inequitable treatment do not establish that Mr. Hunter's conduct was "nearly identical" to the conduct for which Ms. Denard reprimanded Ms. Brooks. On the record before the Court, Ms. Brooks has not carried her burden to demonstrate that she is similarly situated to Hunter in all relevant respects. McCann, 526 F.3d at 1373. Consequently, as a matter of law, she has not established a prima facie case of discrimination.
In her opposition brief, Ms. Brooks argues that she was "subjected to the creation of and exposure to a hostile work place" and was "abused and tormented on the job," which "caused her to retire involuntarily." (Doc. 35, pp. 4-5 & 18). To the extent that Ms. Brooks brings a separate claim for hostile work to alter the conditions of [her] employment." Bryant v. Jones, 575 F.3d 1281, 1296 (11th Cir. 2009) (quotation omitted); see also Kelly v. Dun & Bradstreet, Inc., 2014 WL 747235, at *3 (11th Cir. Feb. 27, 2014) (in hostile workplace action, plaintiff must demonstrate that "the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. . . .") (internal quotations omitted). The environment must be one "that a reasonable person would find hostile or abusive." Id. "[D]iscrete acts . . . cannot alone form the basis of a hostile-work-environment claim." Id.
When asked in her deposition what she meant by "the creation of and exposure to a hostile workplace," Ms. Brooks testified that she received, "[c]onstant scrutiny for things that . . . Toney could do that I couldn't do," like "asking for reports." (Doc. 31-3, p. 144). She added, "if a report was not even due or if it was a report that I didn't normally have to do and there was a crunch time for everybody above me, I would routinely have to do extra work that was really not a part of my job description in order for the powers [that] be to get information to Montgomery." (Id.). Ms. Brooks commented that this type of "scrutiny" was "understandable." (Id.).
Ms. Brooks also testified that she received "very nasty" emails from Ms. McClintock. (Doc. 31-3, p. 130). Ms. Brooks explained that by "nasty" she meant that "they were e-mails that discussed what her expectations were," which Ms. Brooks found to be "derogatory in nature" and "demeaning, talking down to." (Id. at 131). Ms. Brooks nevertheless agreed that Ms. McClintock had the right to have expectations regarding individuals who worked for the Department. (Doc. 31-3, p. 131). Ms. Brooks could not recall other examples of harassment. (Id. at 132).
Ms. Brooks falls short of establishing a prima facie case for her hostile work environment claim. The evidence that she offers does not convey a pervasively harassing work environment that a reasonable person would find hostile or abusive.
As with Ms. Brooks's claim for discrimination, when, as here, the record contains no direct evidence of retaliation, the Court must employ the McDonnell Douglas analytical framework to analyze a retaliation claim. Bryant, 575 F.3d at 1307. Under either the ADEA, Title VII, or § 1983, to establish a prima facie case of retaliation, Ms. Brooks must show that: (1) she engaged in a statutorily protected expression; (2) she suffered an adverse employment action; and (3) the adverse action was causally related to the protected expression. Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002). Defendants argue that Ms. Brooks has not established that she suffered an adverse employment action or engaged in statutorily protected expression. (Doc. 31, pp. 13-14). The Court already has concluded that Ms. Brooks established that she suffered an adverse employment action;
"Statutorily protected expression includes internal complaints of discrimination to superiors, as well as complaints lodged with the EEOC and discrimination-based lawsuits." Gerard v. Board of Regents of State of Ga., 324 Fed. Appx. 818, 825 (11th Cir. 2009) (citing Pipkins v. City of Temple Terrace, Fla., 267 F.3d 1197, 1201 (11th Cir. 2001)). To establish that she participated in a protected activity, Ms. Brooks must show "a subjective belief that her employer was engaged in unlawful employment practices and that her belief was objectively reasonable in light of the facts and record presented." Saffold v. Special Counsel, Inc., 147 Fed. Appx. 949, 951 (11th Cir. 2005) (quotation omitted).
Ms. Brooks asserts that the defendants retaliated against her after she protested about the Department's discriminatory treatment of a co-worker based on the co-worker's race, sex, and age. (Doc. 35, p. 3). The record does not demonstrate that Ms. Brooks ever voiced a complaint of race, sex, or age discrimination to anyone in the Department. Ms. Brooks testified that on June 18, 2008, Ms. Denard told her that Ms. McClintock "wanted Margaret Moore written up." (Doc. 31-3, p. 88). Ms. Brooks refused to discipline Ms. Moore because as Ms. Moore's direct supervisor, Ms. Brooks's believed that "Margaret's work was fine." (Id.). According to Ms. Brooks, Ms. Denard and Ms. McClintock wanted to write up Ms. Moore for "arbitrary reasons" that "had nothing to do with her work." (Doc. 31-3, p. 89). Ms. Brooks testified that she knew "it was an illegal write-up" and that she "told Catherine that the write-up was illegal" because "according to personnel policies, you cannot write a person up for something they did not do." (Doc. 31-3, p. 91). Ms. Brooks testified that she told Ms. Denard that the write-up concerned something that had not happened in her presence, and Ms. Denard replied, "okay. Well, let's just go to Angela's office." (Doc. 31-3, p. 92). When asked about her refusal to participate in Ms. Moore's write-up, Ms. Brooks testified:
(Doc. 31-3, pp. 95-97).
At no point in her testimony does Ms. Brooks state that she told Ms. Denard that she believed Ms. Moore was being disciplined because she was African-American or female or over the age of 40. When asked in her deposition how the write up had anything to do with race, Ms. Brooks responded:
(Doc. 31-2, p. 93). When asked whether Catherine or Angela ever cited Ms. Moore's race as the reason for treating her differently, Ms. Brooks responded that "I don't know that I can answer that. Not because I don't know, but I'm not going to be subjective. . . . They wouldn't have said it to me directly because they're both white. . . . I didn't hear anything, but I heard rumors." (Doc. 31-2, p. 94).
Because the record contains no evidence that Ms. Brooks used the term "race" or referred to Ms. Moore's race when refusing to discipline Ms. Moore, Ms. Brooks has not established a prima facie case of retaliation. Brown v. City of Opelika, 211 Fed. Appx. 862, 864 (11th Cir. 2006) (affirming summary judgment for defendant where record contained no evidence that the plaintiff engaged in a protected expression when she "admitted that she never mentioned the word `race' when she complained about Kirby's behavior, that she had no knowledge of Kirby making any racially derogatory comments, and that Kirby took out her anger on everyone, including the white office assistant.").
As the Eleventh Circuit held in Chapman v. AI Transport, 229 F.3d 1012 (11th Cir. 2000):
Id. at 1025-26 (citations, brackets, and quotations omitted). The Court has viewed the evidence in the light most favorable to Ms. Brooks, and it finds that even if one or more of the defendants treated her unfairly, she has not presented sufficient evidence of discriminatory motive to overcome the defendants' summary judgment motion. Therefore, the Court GRANTS summary judgment in favor of the defendants on all of Ms. Brooks's claims. The Court will enter a separate order consistent with this memorandum opinion dismissing the action with prejudice.
