INGE PRYTZ JOHNSON, Senior District Judge.
Plaintiff Laurie Davis has worked for the Lauderdale County Sheriff's department since 1996, and is still so employed. Davis depo. at 6. In late April 2012 plaintiff and the other deputies on that shift with plaintiff all complained to their supervisor, Sergeant David Ray, because Ray would spend most of his shift sitting in a restaurant, or sitting in a car with someone from the County Commission office.
Davis depo. at 240.
Based on these facts, plaintiff filed an action for violations of her rights under 42 U.S.C. § 1983 and Title VII.
The dispute before the court is whether the plaintiff was singled out for the above described punishment based on her gender. The defendants argue the plaintiff cannot establish she was treated disparately, because she has failed to name any similarly situated deputy treated differently than she was. The plaintiff responds that defendants' distinctions are ones without meaning, because all deputies are subject to the same rules and fulfill the same duties. Because the defendants' representations as to the undisputed facts include many disputed facts, the court has carefully combed the evidence submitted.
Having reviewed all the evidence before the court, striking is the sheer volume of evidence produced by plaintiff demonstrating that the Lauderdale County Sheriff's Office time keeping system was in shambles. The system was based on the deputies themselves turning in "dailies" for each day they worked. Depo. of David Ray, at 22. There was no time clock or roll call, rather each deputy simply radioed "dispatch" to make his or her availability to take calls known. Affidavit of plaintiff (submitted as plaintiff exhibit 2 (doc. 45-15)), ¶ 14; depo. of Ray. at 24, 26. Because the "dailies" had to be turned into the courthouse, and because the deputies did not necessarily return to the courthouse at the end of every shift, the dailies were sometimes left at the courthouse at the start of a shift, or for a few days at a time prior to those shifts actually being worked. Plaintiff depo. at 58-61; Patrick Davis depo. at 19-20; Adkison depo. at 58. As explained by Cassandra Thompson, who was working in dispatch
Thompson depo. at 29.
The problems with payroll records began when Nancy Sartain replaced Betty Hoods as office administrator over payroll in the 2011-2012 time frame.
Sartain told plaintiff she went by the dispatch schedule for payroll, not the dailies, because it was the most accurate. Davis depo. at 67-68. Plaintiff expected Sartain would double check the dailies against the master schedule to make sure she worked the hours reflected on the dailies, because Betty Hoods had done so. Davis depo. at 71. The master schedule was created by the sergeants for each of their shifts, and would be marked over with an "S" on top of the "E," "M," or "W" shift assignment if someone called in sick.
The plaintiff asserts mistakes on the schedule were commonplace, the sergeant's version of the schedule would show different leave taken from that reflected on the dispatch schedule, and that because the sergeant's schedule was taped to the sergeant's desk, anyone had access to it to make changes.
At the start of each shift, each deputy that was working would call into dispatch and let dispatch know he or she was available to take calls. On occasion, dispatchers failed to enter the plaintiff as working into the computer system. Davis depo. at 486-491. The schedules had mistakes in them with the days mixed up, and missing dailies, where Sartain would then ask deputies to turn in dailies for prior weeks worked. Patrick Davis depo. at 27-28. Plaintiff admits that at times, she called in sick on dates she had already turned in dailies in advance. Plaintiff depo. at 75. According to Sheriff Willis, the dailies were used to track hours, but the dispatch records of the deputies calling in that they were available for calls was used to verify who worked. Willis depo. at 25.
Upon being accused of misusing leave, the plaintiff went to Sartain and questioned whether she corrected the dailies. Davis depo. at 85. Sartain responded that she recorded the deputies' time exactly as it was turned in on the dailies, and not what was worked according to dispatch.
On May 9, the plaintiff was summoned to the Sheriff's office by Chief Deputy Witt. Plaintiff depo. at 88. She agreed to "repay" 48 hours based on the number of hours the defendants presented to her, because she was trying to keep her job. Plaintiff depo. at 78, 94-96; exhibit 8 (doc. 45-6, p. 11-12). Although defendant Willis alleged plaintiff did not contest this or assert she was being treated unfairly (Willis affidavit (defendant exhibit 6), ¶ 13), the plaintiff claims she tried to point out inconsistencies in the record, but Chief Deputy Witt became irritated so she just agreed to the number defendant presented.
Plaintiff was told she would have to work but record herself not at work to pay back time. She told Witt and Sheriff Willis that she did not do anything intentionally and they both said they knew that it was a mistake. Plaintiff depo. at 89-90; Willis depo. at 119-120, 123-124. In addition to having to work for 48 hours while having the time deducted from her sick and annual leave, the plaintiff was also given a 12 day suspension without pay.
Evidence supports plaintiff's allegations that turning in dailies early was commonplace. Deputy Adkison estimates that 80% of the deputies turned them in early or had someone else complete them, Sartain approved this practice, and that when a daily was missing, often the payroll person would just fill one out. Adkison affidavit, ¶ 21. For example, a memo from the 2012 Christmas holiday time period instructed the deputies to turn in their dailies three days early, and informed them that if anyone was then sick during those days, the paycheck for the following pay period would be adjusted accordingly. Davis depo. at 73; exhibit 7 (doc. 45-6, p. 10). A memo from 2009 instructed deputies not to turn in their dailies on a weekly basis, but rather to turn them in at the end of every shift. Exhibit 6 (doc. 45-6, p. 9). Additionally, the deputies would sign and turn in each other's dailies. Davis depo. at 79-80; Vanderford affidavit (plaintiff exhibit 3 (doc. 45-18)), ¶ 7. The dailies did not record the actual time worked, and the deputies sometimes would turn in a daily, start to go home, and then respond to additional calls in overtime. Plaintiff depo.
Upon being asked if she knew anyone else who turned in a daily in advance and then did not work those hours, the plaintiff volunteered that Thomas McCluskey did the same thing. Davis depo. at 109-100, 203-204. She added that he might have been noting his leave on his dailies, but Sartain missed his notes and recorded him as working when he was not. Rather than requiring him to "repay" the improperly paid hours, the matter concerning McCluskey was dropped. Davis depo. at 115. McClusky was paid for three days as having worked although he was on leave. Adkison affidavit, ¶ 23. McClusky, an investigator, also refused to respond to a burglary call in December 2012 and plaintiff learned he was in a parking lot with the sheriff at the time, selling unlicensed Alabama merchandise. Plaintiff depo. at 274-276. Similarly, Terry Woods, a deputy, was paid as working for time he spent bush hogging Sheriff Ronnie Willis' hunting property. Plaintiff depo. at 116-117. Terry Woods was also paid for working on Sundays while he was attending church. Plaintiff depo. at 119-120. Deputy David Terry also got paid for time he told the dispatcher to keep him logged in, but that he would not be taking any calls, because he was at boy scout camp with his son.
The plaintiff also pointed to defendant Witt as having gotten paid for time he was not actually working.
Although plaintiff had agreed to be penalized 24 hours of sick leave and 24 hours of annual leave, that agreement had to be amended because the defendants learned plaintiff did not have 24 hours of sick leave to deduct.
At deposition, having reviewed the records, Sergeant Ray stated that January 23, 2012, February 11, 2012, March 11, 2012, April 5, 2012, and April 13, 2012, were the dates in issue.
Similarly, Sheriff Willis noted that on January 23, 2012, the daily stated she was sick, and the master schedule reflects that she worked the middle section of the county that day. Willis depo. at 47. He agreed that plaintiff claimed she worked 8 hours, one schedule showed her working 8 hours, and another schedule showed she was sick that day. Id. at 53. Willis stated that the master schedule showing that plaintiff worked on January 23 was not the same schedule defendant Ray brought to him, because Ray maintained his own schedule. Id. at 55. On January 16, the master schedule showed plaintiff was scheduled off, yet completed a daily for that day. Id. at 59. On February 11, 2012, the plaintiff again turned in 8 hours on a daily, the plaintiff was not logged into the system by dispatch, but the master schedule reflects she worked the western section of the county. Id. at 60-61. On March 11, 2012, the master schedule reflected the plaintiff was out sick, although a daily was turned in for that date. Id. at 63-64. The prior day, March 10, 2012, there are two dailies for the plaintiff, one showing 8 hours, one showing nine hours, and in two different handwritings. Id. at 65-66. On April 25, 2012, the plaintiff was marked as "sick" on the master schedule, but turned in a daily stating she worked 9 and a half hours, including a theft at a church. Id. at 69.
The plaintiff was the only employee disciplined for discrepancies in her time, although other deputies had similar time issues. Tracy Vanderford stated by affidavit
Deputies Joe Shanes, Harry McGee, Clifford Whitten, Thomas McCluskey, and defendants Ray and Witt all had questionable leave and overtime practices, but plaintiff was the only one ever investigated. Adkison affidavit, ¶ 20. Adkison noted on one date, one schedule showed him working while another was blank; he was paid regular pay on a date he knew he was on leave; on another date one schedule showed him working while the other had him on annual leave; still another date for which he received regular pay the master schedule showed an "E" with an "L" over it, although the other schedule had an "M" with a "C" over it (for comp time). Adkison affidavit, ¶ 40. Yet another date, during the same time period as plaintiff's records were wrong, both schedules show he was working although he received annual leave; and on another date, for his scheduled off day he was shown as having taken sick leave. Id.
Errors in scheduling were typical, although plaintiff was the only person ever reprimanded for those inconsistencies. Adkison affidavit, ¶ 40. Defendant Willis claimed by affidavit to have no knowledge of any other deputy submitting a daily for a day he or she was actually on sick leave. Willis affidavit, ¶ 17. Yet in his deposition, Willis did allow for the fact that the plaintiff was not the only deputy to have discrepancies. Willis depo. at 42-43. However, she was the only one to be investigated, and he notified both the Lauderdale County District Attorney and the Alabama Bureau of Investigations about her alleged theft of time. Willis depo. at 37-38. Similarly, he asserts no one has filed a written complaint against anyone but plaintiff claiming a deputy failed to properly record sick leave. Willis affidavit, ¶ 23.
Ray states the plaintiff was the only person he investigated at the time, but on a prior occasion he did look into Harry McGee's use of comp time. Ray depo. at 57. Ray alleged there was no other deputy whose time was in question. Ray depo. at 58-59.
The plaintiff alleges after her suspension and working against her accrued sick and annual leave, she ended up on Family Medical Leave Act ("FMLA") leave due to the stress of her job situation. Plaintiff depo. at 157. The plaintiff alleges she told her doctor about defendant Ray making inappropriate comments, cussing at her, her suspension, and harassment by Ray when she returned to work. Plaintiff depo. at 158. According to plaintiff, she had gone to defendant Witt "three or four times in tears asking him and begging him to get David Ray off me, and he wouldn't." Plaintiff depo. at 160. The plaintiff also alleges that Sheriff Willis would not intervene when she complained about defendant Ray because
Plaintiff depo. at 535. Thus, the plaintiff believes the whole investigation into her time was begun by defendant Ray and that defendant Willis did not intervene because defendant Ray was blackmailing him. Plaintiff depo. at 535-536.
The plaintiff contends that after learning she was pregnant, Ray chastised her for taking light duty. Plaintiff depo. at 163. He would make comments that women should be home cooking and had no business in the sheriff's department. Plaintiff depo. at 346. Although plaintiff never reported this behavior to defendant Willis (Davis depo. at 163-164), she did report it to defendant Witt, who informed her going to David Ray about it would just "make it worse." Davis depo. at 301.
A moving party is entitled to summary judgment if there is no genuine issue of material fact, leaving final judgment to be decided as a matter of law. See Federal Rule of Civil Procedure 56; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). An issue is "material" if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case. It is "genuine" if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997).
The facts, and any reasonable inferences therefrom, are to be viewed in the light most favorable to the non-moving party, with any doubt resolved in the nonmovant's favor. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 158, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970). Once met by the moving party, however, the burden shifts to the non-moving party to come forward with evidence to establish each element essential to that party's case sufficient to sustain a jury verdict. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Earley v. Champion Int'l Corp., 907 F.2d 1077, 1080 (11th Cir.1990).
A party opposing a properly submitted motion for summary judgment may not rest upon mere allegations or denials of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Eberhardt v. Waters, 901 F.2d 1578, 1580 (11th Cir.1990). In addition, the non-moving party's evidence on rebuttal must be significantly probative and not based on mere assertion or be merely colorable. See Rule 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Speculation does not create a genuine issue of fact. Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1181 (11th Cir.2005).
The court must consider the evidence in the light most favorable to the plaintiff and may not make credibility determinations nor weigh the parties' evidence. Frederick v. Sprint/United Management Co., 246 F.3d 1305, 1311 (11th Cir.2001); Stewart v. Booker T. Washington Insurance., 232 F.3d 844, 848 (11th Cir.2000).
A plaintiff may prevail on an employment discrimination claim by either proving that intentional discrimination motivated the employer or producing sufficient evidence to allow a rational trier of fact to disbelieve the legitimate reason proffered by the employer, which permits, but does not compel, the trier of fact to find illegal discrimination. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1088 (11th
The plaintiff alleges she was treated differently than male deputies who engaged in conduct similar to her own. Having applied the three prong test fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), as required for circumstantial evidence, the court finds plaintiff's allegations raise a genuine issue of material fact. See also Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-253, 101 S.Ct. 1089, 1093-1094, 67 L.Ed.2d 207 (1981). The oft cited test requires the plaintiff establish a prima facie case of discrimination, McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. at 1824, creating a presumption that the employer unlawfully discriminated against the employee. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094; Combs v. Plantation Patterns, 106 F.3d 1519, 1527-1528 (11th Cir.1997). The burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the alleged discriminatory employment action. Harris v. Shelby County Board of Education, 99 F.3d 1078, 1083 (11th Cir.1996).
Finally, the plaintiff must offer evidence to show that the defendant's articulated reason was a pretext for discrimination. An employer's stated reason is not a pretext unless it is shown that both: (1) the reason was false; and (2) the real reason was unlawful. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). A plaintiff may show a pretext either "directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Jackson v. Ala. State Tenure Comm'n, 405 F.3d 1276, 1289 (11th Cir. 2005). The focus of the case after the defendant meets its burden of production is on the defendant's subjective intent and the motivation behind the defendant's adverse employment action directed at plaintiff. Harris, 99 F.3d at 1083.
To establish a prima facie case of disparate treatment pursuant to Title VII, the plaintiff must show: (1) she is a member of a protected class; (2) she was subjected to adverse employment action; (3) her employer treated similarly situated employees outside her class more favorably; and (4) she was qualified to do the job.
The only issue before the court on the plaintiff's prima facie case is whether plaintiff was treated differently than similarly situated male deputies. The plaintiff identified a substantial number of male deputies whose dailies and time sheets did not match. Although the defendants try to distinguish each of those individuals by
The court also finds the distinction by defendants that Sheriff Willis received no other written complaints other than the one concerning plaintiff to be of no assistance to defendants. Given that Ray took his allegations about plaintiff to Willis, and that Willis told Ray to put those complaints in writing, the court surmises that a jury could find that Ray verbally took similar issues concerning male deputies to Sheriff Willis and that Willis did not act on them. Similarly, a finder of fact could conclude that Ray was aware of multiple abuses of time by the deputies he supervised, but only took his complaints about plaintiff to Willis.
Thus finding the plaintiff has established at least a jury question concerning whether any of the identified male deputies were indeed similarly situated, the court next considers whether the defendants have established a legitimate reason for their actions. The defendants assert that Willis had an abundance of evidence to support Ray's allegations against plaintiff, and thus Willis' decision was reasonable. Setting aside the hindsight knowledge that to date defendants lack any ability to conclusively establish whether or not plaintiff actually worked or called in on the dates in question, Willis agreed that the dailies were inaccurate and the two maintained schedules did not match. See Willis depo. at 47, 53. Although Willis seeks to rely on Ray's schedule, multiple deponents agreed that Ray's schedule was quite often inaccurate, and that the inaccuracies were well known. Therefore, the court finds Willis' reasonableness in relying on Ray's schedules and representations is a question for the trier of fact.
Whether or not plaintiff actually abused the time system is not relevant to the issues before the court. Rather, the question before the court for purposes of the pending motion is whether Willis' reliance on Rays assertions in disciplining plaintiff was reasonable, or whether is was a pretext for discrimination. Even if the court could, at this time, find Willis' actions to have been legitimate and non-discriminatory, the plaintiff has "come forward with evidence sufficient to permit a reasonable fact finder to conclude that the legitimate reasons given by the employer were not its true reasons, but were a pretext for discrimination." Vessels v. Atlanta Independent School System, 408 F.3d 763, 771 (11th Cir.2005). Because of the wide-spread knowledge that the time system the County used was so decrepit, plaintiff has raised a genuine issue of fact concerning whether the investigation and subsequent suspension of just her was based on her
The court shall deny summary judgment on plaintiff's claims of disparate treatment gender discrimination under Title VII, and § 1983 in Willis' individual capacity.
Because plaintiff concedes the defendants' motion on her claims under the Equal Pay Act and for Retaliation is due to be granted, the court shall so rule by separate order.
Based on the foregoing, the court shall
Meanwhile, Deputy Adkison also testified that Ray regularly went "ballistic" when someone did not show up for work, and that Adkison questioned how McGee, plaintiff, Clifford Whitten, and Thomas McClusky could have as much accumulated leave as they took, and how Joe Shanes could possibly work as much overtime as he claimed. Adkison depo. at 44-46, 60.
