MARK E. FULLER, Chief District Judge.
This lawsuit is brought under 42 U.S.C. § 1983—for violations of the Fourteenth Amendment and 42 U.S.C. § 1981—and under Title VII of the Civil Right Act of 1964, codified at 42 U.S.C. §§ 2000e et. seq. ("Title VII"). Sylvia Summers ("Summers") claims sex discrimination, race discrimination, and retaliation against the defendant, City of Dothan, Alabama ("City of Dothan"), allegedly occurring during her employment with the Dothan City Police Department. (Doc. # 1, at 3, ¶ 14). The action is now before the Court on three motions: (1) the City of Dothan's Motion for Summary Judgment, (Doc. #31), filed on July 19, 2010; (2) Summers's Motion to Strike Defendant's Untimely Evidentiary Submission and Argument ("Motion to Strike"), (Doc. # 44), filed on August 16, 2010; and (3) the parties' Joint Motion to Extend Pretrial Deadlines ("Joint Motion to Extend") filed on October 20, 2010. (Doc. # 56). For the following reasons, this Court finds (1) that the Motion to Strike, (Doc. # 44), is due to be GRANTED in part and DENIED in part; (2) that the Motion for Summary Judgment, (Doc. # 31), is due to be GRANTED; and (3) that the Joint Motion to Extend, (Doc. # 56), is due to be DENIED as MOOT.
This Court has subject matter jurisdiction over the case pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3)-(4) as well as 42 U.S.C. § 2000e-5(f)(3). Venue is proper in this district pursuant to 28 U.S.C. § 1391(b) and 42 U.S.C. § 2000e-5(f)(3).
The City of Dothan's Personnel Rules and Regulations ("the Personnel Rules") govern its employees, all of whom are provided with a copy of the Personnel Rules in an employee handbook. (Doc. # 32, at 2). The Personnel Rules provide that "[i]t shall be the duty of all City employees to comply with and to assist in the compliance of the provisions of the Personnel Rules." (Doc. # 33 Ex. E, McKay Aff. Ex. A. § 3-10(1)). Offenses, including failures to comply with the Personnel Rules and applicable laws, are categorized into three classifications—Minor, Major, and Intolerable—based upon their level of seriousness. Id. § 3-20(1)-(3). Although not defined, Minor offenses result in discipline that is "designed to be positive in nature, whereby employees are accorded the opportunity to correct their behavior or performance."
The City of Dothan maintains an Equal Opportunity and an Affirmative Action Plan ("The Equal Opportunity Plan") in order to assure "equal opportunity for all applicants and employees . . . based on a policy of nondiscrimination in personnel procedures and practices." (Doc. # 33 Ex. E, McKay Aff. Ex. B). The Plan prohibits discrimination because of, inter alia, race and gender, in such areas as recruiting, hiring, the terms and conditions of employment, and promotions. Id.
Police officers in the Dothan Police Department ("Police Department") are expected to follow additional rules and regulations. (Doc. # 32, at 4). The Police Department "provides its offices with standard procedural guidelines in the form of Procedural General Orders (`PGOs')." Id. PGO 511 provide the criteria for, inter alia, arrest procedures, booking procedures, warrants, and jurisdiction. Id.; see also Doc. # 33 Ex. F, Powell Aff. Ex. A. Section II(A) of PGO 511 provides that:
(Doc. # 33 Ex. F, Powell Aff. Ex. A).
Finally, police officers must also abide by the by the laws of the state, including Rule 19 of the Alabama Rules of Judicial Administration ("Rule 19"), which provides the requirements for issuing traffic tickets. (Doc. # 32, at 4). Rule 19(6)(a)(i) states:
(Doc. # 33 Ex. F, Powell Aff. Ex. D). Thus, officers in the Dothan Police Department are expected to swear to Uniform Traffic Citations ("UTCs") within 48 hours after issuance.
Summers is an African-American female. (Doc. # 32, at 5; Doc. # 39, at 2). On June 12, 2000, the City of Dothan hired her as a Jail Security Officer. (Doc. # 32, at 5; Doc. # 39, at 2). Summers alleges that she was subjected to racial and sexual discrimination during her employment as a Jail Security Officer.
During the City of Dothan's investigation into Summers's complaints of discrimination, she was promoted to Police Officer on April 22, 2001 and assigned to the Patrol Division. (Doc. # 1, at 4, ¶ 23; Doc. # 32, at 5). Plaintiff alleges sexual and racial discrimination during her time in the Patrol Division. (Doc. # 1, at 4-5, ¶ 24) (claiming that if Summers "was sent out on a call and required backup, the back up [sic] was unnecessarily delayed by being sent from across town instead of calling the closest officer available"). Summers complained to her new supervisors. Id. at 5, ¶ 25. She further alleges retaliation for these complaints. Id. at 4-5, ¶ 24. The City of Dothan contends, and Summers does not dispute, that she "received a number of disciplinary infractions and had a number of performance issues" throughout 2002 and 2003. (Doc. # 32, at 6).
On April 5, 2006, Officer Summers arrested Brian Shack ("Shack") for criminal trespass as well as several outstanding warrants. (Doc. # 32, at 10; Doc. # 39, at 4).
During this time, on June 1, 2006, Summers claims that she submitted a written complaint to the Chief of Police, John Powell ("Chief Powell"), addressing her poor job evaluations, prior conflicts, and unfair treatment by supervisors. (Doc. # 1, at 5, ¶ 30). She also claimed that her supervisors spoke profanely towards her in a derogatory manner and that she was subject to unequal and unfair treatment. Id. In support of this, Summers cites to a Police Officer's Statement of Events form dated
In late July of 2006, Chief Powell learned of the Shack incident and assigned the matter to Lieutenant Ray Owens ("Lt. Owens"), who then assigned it to Corporal John Brackin ("Corp. Brackin") in Internal Affairs for investigation. (Doc. # 32, at 11; Doc. # 39, at 5). On January 8, 2007, Corp. Brackin completed his investigation and turned in his report and recommendation to Chief Powell. (Doc. # 33 Ex. F, Powell Aff. Ex. B). He determined that Shack had been held in jail for "104 days without a complaint of arrest being properly signed" until being released on July 17, 2006. Id. He stated that Summers did not go to the Magistrate's office to swear to the complaint until July 28, 2006, after being notified of Shack's release. Id. He also determined that this inaction subjected the City of Dothan and the Police Department to undue financial loss. Id. at 4. Thus, Corp. Brackin found that Summers had violated PGO 511 § II(A) and had committed a Major offense under Personnel Rule 3-42(6).
During the investigation of Summers's arrest of Shack, Internal Affairs discovered that Officer Robert Cole ("Officer Cole") had also arrested Shack for criminal trespassing and failed to timely swear to the complaint. (Doc. # 32, at 12; Doc. # 33 Ex. F, Powell Aff. ¶ 8; Doc. # 39). Corp. Brackin also investigated this incident and turned in his report and recommendation on January 5, 2007. (Doc. # 33 Ex. F, Powell Aff. Ex. C). His investigation
On March 15, 2007, Summers issued three UTCs to motorists in Dothan. (Doc. # 32, at 16). However, she did not swear to the UTCs within 48 hours as required by Rule 19. Over one month later, on or around April 17, 2007, one of the motorists went to the Magistrate's office to pay the traffic ticket; however, there was no record of the ticket because Summers had failed to turn in the three UTCs. (Doc. # 32, at 16; Doc. # 39, at 13-14). Another police officer who "had spoken to the motorist regarding the missing UTC" called Sergeant Benny Baxley ("Sgt. Baxley") who then informed Lieutenant Roy Woodham ("Lt. Woodham") of the missing UTCs. (Doc. # 32, at 16-17; Doc. # 39, at 13-14). Investigating at Lt. Woodham's request, Sgt. Baxley met with Summers and discovered that she had the unsworn UTCs tucked in to the backside of her book. (Doc. # 32, at 17; Doc. # 39, at 14). Summers immediately went to the Magistrate's office and swore to the tickets over a month after issuing them. (Doc. # 32, at 17; Doc. # 39, at 14).
On April 25, 2007, both Lt. Woodham and Sgt. Baxley wrote memorandums to Chief Powell regarding Officer Summers. (Doc. # 32, at 18; Doc. # 39, at 14-15). Lt. Woodham discussed her failure to comply with the 48-hour rule for swearing to UTCs and stated, "I personally know of several times in her employment where Officer Summers has been counseled in similar matters of time sensitive follow-up of police actions." (Doc. # 33 Ex. F, Powell Aff. Ex. E). He also noted Summers's receipt of a Major offense less than six months earlier for the Shack incident. Id. Chief Powell again contacted Lt. Owens in Internal Affairs to investigate the matter and also referred it to the legal department. (Doc. # 32, at 19). After completing its investigation, Internal Affairs recommended charging Summers with a Major category offense. Id. "Based on [Summers's] conduct, Chief Powell made the decision to administer a write-up for a major category offense in accordance with the [Personnel Rule] 3-42(6)." Id.
The City of Dothan received notice of Summers's EEOC charge on July 3, 2007, eight days after her termination. Id. at 21. On July 10, 2007, Summers amended her EEOC charge to reflect her termination. Id. at 22. Finally, on August 1, 2007, Summers's appeal was heard by the Personnel Board. Id. For Summers's appeal, her merit system attorney had subpoenaed the Police Department for the UTC records of other police officers. (Doc. # 39, at 15). The evidence produced demonstrated several previously unknown violations of the 48-hour rule for UTCs by these other officers. Id. The Personnel Board ultimately ratified the decision to terminate her on September 19, 2007. (Doc. # 32, at 22).
On September 23, 2008, Summers filed this action pursuant to § 1983—for violations of the Equal Protection Clause of the Fourteenth Amendment and § 1983—and Title VII, alleging discrimination on the basis of race and gender in the form of disparate treatment as well as retaliation for complaining of such discrimination during her employment with the City of Dothan. (Doc. # 1).
On July 19, 2010, the City of Dothan filed a Motion for Summary Judgment as to all of these counts, (Doc. # 31), a brief in support of this motion, (Doc. # 32), and an evidentiary submission. (Doc. # 33). Summers filed Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment ("the Response") on August 5, 2010. (Doc. # 39). One week later, on August 12, 2010, the City of Dothan filed Defendant's Reply Brief in Support of its Motion for Summary Judgment ("the Reply"). (Doc. # 41). The City of Dothan
Summers contends that the City of Dothan's Reply and evidentiary submission in support thereof "are improper because both contain additional evidence and argument that were not timely raised in [the City of Dothan's] initial brief and evidentiary submission." (Doc. # 44, at 2). She points to this Court's Uniform Scheduling Order and its requirement that dispositive motions be filed by July 19, 2010 and that a "`brief and all supporting evidence shall be filed with any such motion.'" Id. at 1 (quoting Doc. # 26, at 1). Thus, Summers objects to three additional exhibits filed as part of the City of Dothan's evidentiary submission in support of its reply brief: (1) Exhibit E, the affidavit of Delvick J. McKay II; (2) Exhibit F, Summers' initial disclosures; and (3) Exhibit G, the affidavit of Judge Rose Evans Gordon.
Despite this Court's Uniform Scheduling order, "[a]ccording to Rule 6(b), a court may enlarge the time period in which a party has to act, even upon motion made after the expiration of the specified time period, where the failure to act was the result of `excusable neglect.'" Osahar v. U.S. Postal Serv., 136 Fed.Appx. 259, 260-61 (11th Cir.2005) (citing Fed. R.Civ.P. 6(b)). However, the City of Dothan has not filed any motion for extension nor has it sought leave of this Court to file additional evidentiary submissions with its reply brief. Nor has the City of Dothan made an affirmative showing of excusable neglect or of newly-discovered evidence. Therefore, this Court will not consider such untimely additional evidence when ruling on the City of Dothan's motion for summary judgment. See Gary v. Ga. Dep't of Human Res., No. 4:03-CV-164(CDL), 2005 U.S. Dist. LEXIS 46991, at *2-3 (M.D.Ga. Nov. 3, 2005) (refusing to consider an "untimely affidavit" because the plaintiff "filed no additional motion to extend the deadline" at issue and because she made no showing that the untimeliness was the result of excusable neglect or that the affidavit's content was "newly discovered evidence extracted from a previously missing source") (citing Fed.R.Civ.P. 6(b)), aff'd, 206 Fed.Appx. 849 (11th Cir.2006); Mosley v. MeriStar Mgmt. Co., LLC, 137 Fed.Appx. 248, 250 (11th Cir.2005) ("Absent an affirmative showing . . . of excusable neglect according to Fed.R.Civ.P. 6(b), a court does not abuse its discretion in refusing to accept out-of-time affidavits.") (citing Useden v. Acker, 947 F.2d 1563, 1571-72 (11th Cir.1991), cert. denied, Useden v. Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, 508 U.S. 959, 113 S.Ct. 2927, 124 L.Ed.2d 678 (1993)), reh'g denied, reh'g en banc denied, 163 Fed. Appx. 850 (11th Cir.2005); Lewis v. Zilog, Inc., 908 F.Supp. 931, 959 (N.D.Ga.1995) (excluding one declaration that "was not submitted with Defendant's original Motion for Summary Judgment, but only with
Additionally, Summers argues that this Court should strike an argument by the City of Dothan based upon Lt. Woodham's deposition. (Doc. # 44, at 7-9). She does not object to the inclusion of this deposition in the evidentiary supplement, since she herself filed a rough draft of it in her Response to the summary judgment motion. Id. at 2 n. 1. However, Summers objects to the inference that the City of Dothan took from this testimony—namely, that Lt. Woodham was unaware that Summers was the officer who failed to turn in the UTCs. Id. at 7-8. She contends that the actual testimony contradicts this inference, or, in the alternative, that the testimony is ambiguous and should be construed in the light most favorable to her as the non-moving party. Id. at 7. Despite such contentions, Summers admits that "[w]hether or not Lt. Woodham knew that Officer Summers wrote the UTCs at first is not important" because the punitive action at issue is the memorandum he wrote to Chief Powell regarding the matter. Id. at 8. Since the memorandum referred to Summers and the UTC incident, she claims that there is no dispute that Lt. Woodham was aware that Officer Summers wrote the UTCs at the time he sent it to Chief Powell. Id. This Court declines to strike these legal arguments and will consider them, if at all, under the proper summary judgment standard.
Thus, Summers's Motion to Strike, (Doc. # 44), is due to be GRANTED in part and DENIED in part. It is granted with respect to Exhibits E, F, and G of the Evidentiary Submission in Support of Defendant's Reply Brief, (Doc. # 42), and this Court will not consider arguments in the reply brief that are based upon that evidence.
Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party asking for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact."
Once the moving party has met its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by [his] own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex 477 U.S. at 324, 106 S.Ct. 2548. To avoid summary judgment, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (emphasis added). A plaintiff must present evidence demonstrating that he can establish the basic elements of his claim. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. A court ruling on a motion for summary judgment must believe the evidence of the non-movant and must draw all justifiable inferences from the evidence in the non-moving party's favor. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. After the nonmoving party has responded to the motion for summary judgment, the court must grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c).
Pursuant to § 1983, Summers brings claims for violations of the Fourteenth Amendment—namely race discrimination, gender discrimination, and retaliation—and § 1981—namely race discrimination and retaliation. (Doc. # 1, at 11-14, ¶¶ 71-98); accord Butts v. County of Volusia, 222 F.3d 891, 893 (11th Cir. 2000) ("[Section] 1983 constitutes the exclusive remedy against state actors for violations of the rights contained in § 1981.") (citing Jett v. Dallas Indep. Sch. Distr., 491 U.S. 701, 731-36, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989)). Section 1983 provides, in pertinent part:
42 U.S.C. § 1983. Because of § 1983's requirement that the actions be taken under color of state law, a plaintiff bears the burden of "demonstrat[ing] that `the conduct allegedly causing the deprivation of a federal right [is] fairly attributable to the State.'" Gene Thompson Lumber Co. v. Davis Parmer Lumber Co., 984 F.2d 401, 403 (11th Cir.1993) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982)).
Here, the City of Dothan contends that Summers has failed to present any evidence that the allegedly discriminatory actions complained of were done under the color of state law. (Doc. # 32, at 25-26). Because this is an issue upon which Summers
Under this color-of-state law requirement, a municipality can only be held liable under § 1983 "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury." Monell v. Dep't of Soc. Servs. of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); see also Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998) ("[A] municipality may be held liable [under § 1983] for the actions of [an employee] only when municipal `official policy' causes a constitutional violation.") (citing Monell, 436 U.S. at 694-95, 98 S.Ct. 2018). Thus, to satisfy the under-color-of-state law standard, a plaintiff in a § 1983 suit against a municipality must establish that the acts giving rise the injury arose from one of three sources: (1) "an official government policy"; (2) "the actions of an official fairly deemed to represent government policy"; or (3) "a custom or practice so pervasive and well-settled that it assumes the force of law." Denno, 218 F.3d at 1276.
Summers has failed to present evidence that any of the allegedly discriminatory actions were taken pursuant to an official policy. In fact, in her Response, she completely failed to address the City of Dothan's arguments on this issue, discussing only the merits of the underlying discrimination claim and making no mention of § 1983's requirement that the action be taken under color of state law. Additionally, the undisputed evidence before this Court establishes that the official policy of the City of Dothan was to prohibit race and gender discrimination in all personnel procedures and practices and to prohibit retaliation for complaining of discrimination.
Nor has Summers presented evidence establishing the alleged discrimination resulted from "the actions of an official fairly deemed to represent government policy." Denno, 218 F.3d at 1276. For an official to be fairly deemed to represent government policy, "the acting official must be imbued with final policymaking authority" in that his "decisions in the area are [not] subject to meaningful administrative review." Id. (citations omitted). Summers's Complaint and Response include allegations of mistreatment by other police officers, by dispatchers, and by superiors such as Captain Draughon and Chief Powell. However, she has offered no evidence or argument regarding the policymaking authority of these persons within the particular area that their actions were undertaken. Additionally, the undisputed evidence establishes that the City of Dothan has a grievance and appeal procedure. (Doc. # 33 Ex. E, McKay Aff. Ex. A). Under this procedure, an employee first files a complaint with his supervisor. If unsatisfied with the department head's disposition of the grievance, the employee can then appeal to the Personnel Board, which Summers did in regards to her termination. See Doc. # 32, at 22; Doc. # 39, at 13. Thus, not only has Summers failed to establish the policymaking authority of any of the persons at issue, but the undisputed evidence establishes that they are subject to administrative review. Summers has presented no evidence or argument that this administrative review is anything but meaningful.
Finally, Summers has failed to establish that the allegedly discriminatory actions were undertaken pursuant to a "custom or practice so pervasive and well-settled that it assumes the force of law." Denno, 218 F.3d at 1276. To prove a
In sum, Summers failed to proffer sufficient evidence to establish that the allegedly discriminatory acts were done under color of state law. Indeed, she has failed to even argue the color-of-state-law requirement of § 1983 even after the City of Dothan demonstrated her failure to present evidence on this issue. Thus, Summers has not established a "genuine" factual dispute with a "real basis in the record" as to the under-color-of-state-law requirement. Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 919 (11th Cir.1993) (citing Matsushita, 475 U.S at 586-87, 106 S.Ct. 1348), reh'g en banc denied, 16 F.3d 1233 (11th Cir.1994), reh'g denied, No. 92-2485, 1994 U.S.App. LEXIS 40941 (11th Cir. Feb. 16, 1994). Given that Summers bears the ultimate burden of proof on this issue, this Court finds that the City of Dothan has met its burden on summary judgment and is entitled to judgment as a matter of law on the § 1983 claims. Therefore, the City of Dothan's motion for summary judgment is due to be GRANTED with respect to the Fourteenth Amendment and § 1981 claims brought pursuant to § 1983.
Title VII prohibits employers from "discriminat[ing] against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e2(a)(1). In Count II of the Complaint, Summers alleges sex discrimination, race discrimination, and retaliation "with respect to discipline, her termination, and other terms, conditions, and privileges or her employment" in violation of Title VII. (Doc. # 1, at 9-10, ¶¶ 62-70). Prior to examining the merits of Summers's Title VII claims, this Court must first determine whether she has met the procedural requirements for bringing such claims— namely, the 180-day time bar in 42 U.S.C. § 2000e-5(e)(1).
For Title VII claims, a plaintiff must satisfy the prerequisites of 42 U.S.C. § 2000e-5(e)(1) before filing a private civil action. See Thomas v. Ala. Council on Human Rels., Inc., 248 F.Supp.2d 1105, 1114 (M.D.Ala.2003) (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109,
In deciding whether any of the alleged acts of discrimination and retaliation are untimely filed, this Court must determine when such acts occurred. Thomas, 248 F.Supp.2d at 1115. This determination in turn depends on whether the plaintiff has alleged a "hostile environment" claim or "discrete retaliatory or discriminatory acts such as termination of employment, failure to promote, denial of transfer, or a refusal to hire." Id. (citing Morgan, 536 U.S. at 110, 114, 122 S.Ct. 2061). Because Summers alleges discrete incidents of discrimination and retaliation, each one "occurr[ed] on the day that it happen[ed]." Id. As the Thomas court explained:
Id. Therefore, all acts of alleged discrimination that occurred prior to 180-days before the filing of Summers's EEOC charge are "untimely filed and no longer actionable." Morgan, 536 U.S. at 114, 122 S.Ct. 2061.
Here, Summers filed her EEOC charge on June 20, 2007 and amended that charge on June 30, 2007 after she was terminated. (Doc. # 32, at 21; Doc. # 39, at 17). Only the termination of her employment covered by the amended charge and the acts of alleged discrimination that occurred within 180 days before the initial charge—namely, December 22, 2006—are actionable. See Morgan, 536 U.S. at 114, 122 S.Ct. 2061 ("[O]nly incidents that took place within the timely filing period are actionable."). On June 1, 2006, Summers was transferred to the First Squad Patrol Division. (Doc. # 1, at 5, ¶ 31). While a member of First Squad Patrol, Summers's employment was terminated in June of
In McDonnell Douglas Corporation v. Green, the Supreme Court set forth a burden-shifting framework for disparate treatment claims under Title VII. 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The plaintiff bears the initial burden of establishing a prima facie case of discrimination. Id. When direct evidence of discrimination is lacking,
If an employer satisfies its burden by articulating a non-discriminatory reason, it rebuts the presumption of discrimination created by the prima facie case. Id. "A plaintiff then bears the ultimate burden of proving them to be pretext for ... discrimination." Damon, 196 F.3d at 1361; see also McDonnell Douglas, 411 U.S. at 805, 93 S.Ct. 1817 ("[A Title VII plaintiff] must be given a full fair opportunity to demonstrate by competent evidence that the presumptively valid reasons for [the adverse employment action] were in fact a coverup for a ... discriminatory decision.").
Here, the parties disagree over whether Summers has established a prima facie case of disparate treatment. The City of Dothan does not dispute the first two elements of a prima facie case of disparate treatment. Rather, the disagreement between the parties arises over whether Summers can establish the third and fourth elements—namely adverse employment action and more favorable treatment of similarly situated employees outside of her protected classes—as to some or all of her remaining claims. See Doc. #32, at 29-41. There must be some evidence from which a reasonable factfinder would find discrimination—namely, evidence of similarly situated employees outside the protected class who have been treated more favorably. That is lacking here.
To establish a prima facie case of discrimination, Summers must show that the City of Dothan treated similarly situated employees outside of her protected classes more favorably. In order for other employees to qualify as comparators, a plaintiff "must show that the `employees are similarly situated in all relevant aspects.'" Knight, 330 F.3d at 1316 (quoting Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997)) (emphasis added); see, e.g., Morris v. Emory Clinic, Inc., 402 F.3d 1076, 1082 (11th Cir.2005) (doctor discharged from clinic due to patient complaints about his conduct who could not show that he was replaced by someone outside his protected class or that a comparable person outside of his protected class received "nearly identical" complaints, but was not fired, failed to establish a prima facie case); Silvera v. Orange County Sch. Bd., 244 F.3d 1253, 1259 (11th Cir.2001) (reversing judgment in favor of the plaintiff because the employer was entitled to judgment as a matter of law where plaintiff's comparator engaged in fewer instances of misconduct than plaintiff), cert. denied, 534 U.S. 976, 122 S.Ct. 402, 151 L.Ed.2d 305 (2001); Maniccia v. Brown, 171 F.3d 1364, 1368-69 (11th Cir. 1999) (affirming summary judgment in the employer's favor where the alleged misconduct of comparators was not sufficiently similar to support disparate treatment claim); Holifield, 115 F.3d at 1563 (affirming summary judgment where the plaintiff failed to produce sufficient evidence that non-minority employees with which he compares his treatment were similarly situated in all aspects, or that their conduct was of comparable seriousness to the conduct for which he was discharged); Jones v. Gerwens, 874 F.2d 1534, 1540-42 (11th Cir.1989); Nix, 738 F.2d at 1187 (African-American plaintiff who was replaced by another African-American after termination for violation of work rule failed to make out a prima facie case of race discrimination because he did not meet his burden of showing that a white employee in similar circumstances was retained while he was fired).
In evaluating the similarity of the comparators identified by the plaintiff, the most important variables in a discriminatory-discipline case are the nature of the offenses committed and the nature of the punishments imposed. See Jones, 874 F.2d at 1539. Both the "quantity and the quality of the comparator's misconduct must be nearly identical to prevent courts from second-guessing employers' reasonable decisions and confusing apples and oranges." Maniccia, 171 F.3d at 1368. In making this analysis a court must keep in mind that "Title VII does not take away an employer's right to interpret its rules as it chooses, and to make determinations as it sees fit under those rules[.]" Id. at 1369. "Moreover, the actions of the employer toward the proffered comparators are only relevant if the decisionmaker knew of the prior rule violations by the comparators and took no action against them." Walton v. Neptune Tech. Group, Inc., No. 2:08-cv-5-MEF, 2009 WL 3379912, at *11, 2009 U.S. Dist. LEXIS 97213, at *37 (M.D.Ala. Oct. 20, 2009) (citing Jones, 874 F.2d at 1542).
Here, Summers spends much of her Response arguing that she did nothing wrong with regards to the Shack incident. (Doc. # 39, at 4-11). However, a prima facie case of discrimination is not established when a plaintiff shows merely that she did not, in fact, violate a work rule that the employer found her to have violated. Miller-Goodwin, 385 Fed.Appx. at 971 n. 2
Summers claims that the "investigation [into the Shack incident] uncovered numerous problems with [the City of Dothan's] procedures and uncovered facts which suggested that a number of [the City of Dothan's] employees were potentially responsible for the absence of the complaint." (Doc. # 39, at 6). She then argues that despite such evidence, "blame for the incident [was placed] solely on Officer Summers and not the other individuals named in the report—none of whom were disciplined." Id. However, the alleged misconduct of these other employees was not nearly identical to Summers's.
For example, Summers claims that Officer Evans was supposed to fill out the first part of the complaint and post it on the swear board. Id. at 5. However, the undisputed evidence before this court shows that section II(A) of PGO 511—the work rule that Summers was charged with violating in the Shack incident—states that "[t]he Officer shall be responsible for obtaining warrants in State misdemeanor cases the same working day, if possible, or the next working day the Magistrate is available." (Doc. # 33 Ex. F, Powell Aff. Ex. A). The City of Dothan interpreted this work rule as meaning that the arresting officer, not the transporting officer, bore the ultimate responsibility of filling out and swearing to the complaints for misdemeanor arrestees. (Doc. #32, at 10). The City of Dothan was entitled to interpret its rule this way. Maniccia, 171 F.3d at 1369. Summers herself admits that it was "usual practice" for the arresting officer to swear to the complaints; however, she also contends that it was also "usual practice" for the transporting officer to "fill out the first part of the complaint form, attach it to the arrest report, and send it through channels where ultimately it is posted on the `swear board' at the [M]agistrate's office for the arresting officer to sign." (Doc. # 39, at 5). Officer Evans misconduct, if any, was not a violation of the same work rule that Summers's was found to have violated—namely the arresting officer's ultimate responsibility of swearing to a complaint as soon as possible—but rather a the transporting officer's responsibility of posting complaints to the swear board. Thus, this Court finds that Officer Evans's alleged misconduct was not nearly identical to Summers's and that he is not a similarly situated employee for purposes of her Title VII disparate treatment claims.
The parties do, however, appear to disagree over what happened next. Taking the facts in the light most favorable to Summers—and indeed, as the facts appear from the City of Dothan's own evidentiary submissions—the Magistrate's office then called Officer Cole to remind him to sign the complaint form. (Doc. #39, at 11; Doc. #33 Ex. F, Powell Aff. Ex. C). When Officer Cole arrived at the office, the complaint that he had completed earlier could not be found. (Doc. #39, at 11; Doc. # 33 Ex. F, Powell Aff. Ex. C). Officer Cole left and did not return to sign the complaint. (Doc. #39, at 11; Doc. #33 Ex. F, Powell Aff. Ex. C). Thirteen days later, Shack appeared in front of a Magistrate Judge, who determined that he had been in the jail for thirteen days without a signed complaint against him. (Doc. # 33 Ex. F, Powell Aff. Ex. C). The Magistrate Judge then nolle prossed the charge due to Officer Cole's lack of action. (Doc. #39, at 11; Doc. # 33 Ex. F, Powell Aff. Ex. C). In the ensuing investigation, it was determined that this incident—like Summers's own incident with Shack—violated PGO 511 § II(A) and subjected the City of Dothan to undue financial loss, (Doc. # 39, at 11-12; Doc. # 33 Ex. F, Powell Aff. Ex. C). Although this was grounds for a Major offense under the City of Dothan's Personnel Rules, (Doc. # 33 Ex. E, McKay Aff. Ex. A), Officer Cole was only charged with a Minor offense. (Doc. #39, at 11-12; Doc. # 33 Ex. F, Powell Aff. Ex. C). Officer Summers, on the other hand, was charged with a Major offense. (Doc. # 39, at 12; Doc. # 33 Ex. F, Powell Aff. Ex. C).
Despite the fact that Officer Summers and Officer Cole violated the same rule and both were found to have subjected the City of Dothan to undue financial loss, their misconduct is not nearly identical such that Officer Cole would be a similarly situated employee. See Maniccia, 171 F.3d at 1368 (holding that the "quantity and the quality of the comparator's misconduct must be nearly identical") (emphasis added). The City of Dothan found that "[b]ecause Cole filled out an arrest complaint and attempted on two occasions to sign the necessary documents, his conduct, though not acceptable, was not as serious as that of [Summers] who totally failed to turn in any paperwork to the Magistrate's office regarding Shack's arrest." (Doc. # 32, at 13). In sum, the City of Dothan found the circumstances underlying the two incidents to be "entirely distinguishable." Id. at 39. The City of Dothan is entitled to differentiate between Officer Summers and Officer Cole based upon the severity of their conduct. In Nix, the Eleventh Circuit explained:
738 F.2d at 1186 (citations omitted). Thus, the Nix court found that the plaintiff had failed to establish a prima facie case of discrimination. Id. at 1187; see also Cannon v. Dyncorp, 462 F.Supp.2d 1190, 1202 (M.D.Ala.2005) ("[A] nondiscriminatory deviation from general policy cannot create an inference of discrimination.").
Here, as in Nix, nondiscriminatory differences just as readily explain the different offense levels charged to Officer Cole and Summers. The City of Dothan concluded, and this Court agrees, that the conduct of Officer Cole was not nearly identical to and was, in fact, much less severe than Officer Summers's conduct.
As for the UTC incident, Summers's entire argument rests upon the grounds that the City of Dothan does not have a policy or practice of enforcing the 48-hour rule for UTCs and that she was the only one disciplined for having violated it. (Doc. #39, at 12-15). However, in order for other employees to be similarly situated, the Summers must "show that [the Internal Affairs investigator] who recommended that [s]he be disciplined, or Chief Powell, who acted on that recommendation, knew of, and condoned, prior similar violations." Jones, 874 F.2d at 1542 n. 14. In other words, the employer must have been "aware of prior [rule violations and] ... consciously overlooked them" at the time he disciplined the plaintiff. Id. at 1542; see also Moreland v. Miami-Dade County, 255 F.Supp.2d 1304, 1314 (S.D.Fla.2002) ("[E]ven if [the employer] knew about the other violations [by other employees], the evidence does not show that [the employer] consciously overlooked those violations when he disciplined [the plaintiff] more severely.") (emphasis added).
Having failed to establish similarly situated employees outside of her protected class who violated the 48-hour rule—and of which violations the investigator or Chief Powell had knowledge when they disciplined Summers for her own violation of that rule—Summers has failed to establish a prima facie case of discrimination with respect to the UTC incident. Also, having identified no further comparators, Summers has failed to establish prima facie cases of discrimination for the other alleged adverse employment actions taken against her. Thus, the City of Dothan's motion for summary judgment as to the race and sex discrimination claims is due to be GRANTED.
Title VII prohibits employers from retaliating against an employee "`because [s]he has opposed any practice made an unlawful employment practice by [Title VII] or because [s]he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing [under Title VII].'" 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation under either the opposition clause or the participation clause, a plaintiff must "show that (1) she engaged in activity protected under Title VII; (2) she suffered an adverse employment action; and (3) there was a causal connection between the protected activity and the adverse employment action." Crawford, 529 F.3d at 970 (citing Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001)).
Here, assuming arguendo that Summers can establish a prima facie case of retaliation, this Court finds that the City of Dothan is still entitled to summary judgment on the retaliation claim because Summers has not established that the City of Dothan's reasons for her termination are pretextual. As in discrimination claims, once the plaintiff establishes a prima facie case, the burden then shifts to the employer to establish a legitimate, nondiscriminatory reason for the adverse employment action. Sullivan v. Nat'l R.R. Passenger Corp., 170 F.3d 1056, 1059 (1999) ("Once the plaintiff makes out a prima facie case, `the burden shifts to the defendant to rebut the presumption of retaliation by producing legitimate reasons for the adverse employment action.'") (quoting Raney v. Vinson Guard Serv., 120 F.3d 1192, 1196 (11th Cir.1997)), reh'g en banc denied, 182 F.3d 938 (1999), cert. denied, 528 U.S. 966, 120 S.Ct. 402, 145 L.Ed.2d 314 (1999). "This intermediate burden is `exceedingly light.'" Holifield, 115 F.3d at 1563 (citing Turnes v. AmSouth Bank, N.A., 36 F.3d 1057, 1061 (11th Cir.1994)). It is a burden of production, not of persuasion, meaning that the employer need not persuade the court that it was actually motivated by the proffered reason. See Burdine, 450 U.S. at 253-255, 101 S.Ct. 1089; see also Meeks v. Computer Assocs. Int'l, 15 F.3d 1013, 1021 (11th Cir.1994).
If the employer satisfies this burden of production, "the presumption of discrimination [or retaliation] is eliminated and `the plaintiff has the opportunity to come forward with evidence, including the previously produced evidence establishing the prima facie case, sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision.'" Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir.2000) (citations omitted). Merely establishing a prima facie case does not entitle a plaintiff to survive a summary judgment motion. Campbell v. Gannett Co., No. 2:05-cv-615-MEF, 2006 WL 2037925, at *9, 2006 U.S. Dist. LEXIS 49584, at *26 (M.D.Ala. July 19, 2006) ("The establishment of a prima facie case does not in itself entitle a plaintiff to survive a motion for summary judgment.") (citing Grigsby v. Reynolds Metals Co., 821 F.2d 590, 595 (11th Cir.1987); Pace v. S. Ry. Sys., 701 F.2d 1383, 1389 (11th Cir.1983)). After an employer proffers its non-discriminatory or non-retaliatory reasons for its actions, "`[i]n order to avoid summary judgment, a plaintiff must produce sufficient evidence for a reasonable factfinder to conclude that each of the employer's proffered ... reason is pretextual.'"
Here, Summers argues pretext because "[the City of Dothan] determined that Officer Summers was responsible for the fact that Brian Shack remained in jail even though there was no evidence that she did anything wrong." (Doc. # 39, at 24). She points out that she was the only employee disciplined for that incident. Id. at 9. She also claims disparate discipline "for her honest mistake in failing to turn in three tickets." Id. at 24. However, "[t]he inquiry into pretext centers on the employer's beliefs, not the employee's belief, and to be blunt about it, not on reality as it exists outside of the decision-maker's head." Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1265 (11th Cir.2010) (citing Holifield, 115 F.3d at 1565). The issue here is not whether Summers actually did anything wrong, but rather "whether her employer[][was] dissatisfied with her for these or other nondiscriminatory reasons, even if mistakenly or unfairly so, or instead merely used those [reasons] ... as cover for discriminating against her because of her [race or gender]." Id. (citing Elrod v. Sears Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir.1991)); see also Sweeney v. State of Alabama Alcoholic Bev. Control Bd., 117 F.Supp.2d 1266, 1273 (M.D.Ala.2000) ("[W]hat is material is whether or not the employer believed the allegations [of work rule violations] to be true, not whether they were in fact true."). As this Court has explained:
Sweeney, 117 F.Supp.2d at 1273 (De Ment, J.) (quoting Elrod, 939 F.2d at 1470).
Summers has presented no evidence to suggest that Chief Powell did not believe that she had violated both PGO 511 § II(A) and the 48-hour rule for UTCs when he disciplined her. Essentially, Summers simply argues that she did nothing wrong and that the City of Dothan should not have punished her for the Shack incident or the failure to turn in the three UTCs. This Court will not consider the "wisdom or accuracy" of the City of Dothan's determination that Summers's was responsible for the Shack incident or that she violated the 48-hour rule in failing to turn in three tickets. Id.; see also Chapman, 229 F.3d at 1030 ("`[F]ederal courts do not sit as a super-personnel department that reexamines an entity's business decisions.'") (quoting Elrod, 939 F.2d at 1470). In fact, the undisputed evidence establishes that Summers did not timely swear to the complaint for Shack and did not turn in the UTCs within 48 hours. Simply claiming that she did nothing wrong and was, in fact, a good employee is insufficient to establish pretext. Id. ("[The] plaintiff cannot succeed simply by quarreling with the wisdom of [the proffered] reason ... [because the courts] must be careful not to allow Title VII
Summers further argues that pretext is evident from Officer Cole's receipt of a Minor offense for failing to swear to a complaint and the fact that no other officers were disciplined for violating the UTC 48-hour rule. (Doc. # 39, at 24). It is true that pretext can be shown by the fact that "other employees outside the protected class, who engaged in similar acts, were not similarly treated." Boyland v. Corr. Corp. of Am., 390 Fed.Appx. 973, 975 (11th Cir.2010). As with establishing a prima facie case of discrimination, a plaintiff making such a claim of pretext must show that the comparators are similarly situated "in all relevant aspects." Rioux v. City of Atlanta, 520 F.3d 1269, 1280 (11th Cir. 2008) (internal citations omitted) (emphasis added), reh'g en banc denied, 285 Fed. Appx. 741 (2008). "Misconduct merely `similar' to the misconduct of the disciplined plaintiff is insufficient." Id. Again, the "quantity and quality of the comparator's misconduct" must be "nearly identical" to that of the plaintiff. Id.
As shown above, Summers has failed to point to any similarly situated employees outside of her protected class who received more favorable treatment with regards to any of the alleged employment actions taken against her. Therefore, Summers has failed to establish pretext and the City of Dothan's motion for summary judgment is due to be GRANTED with respect to the Title VII retaliation claims.
As Summers has no claims due to survive summary judgment, the parties' Joint Motion to Extend is due to be DENIED as MOOT.
For the foregoing reasons, it is hereby ORDERED that:
1. The Motion to Strike, (Doc. # 44), is GRANTED in part and DENIED in part;
2. The City of Dothan's Motion for Summary Judgment, (Doc. # 31), is GRANTED;
3. The Joint Motion to Extend, (Doc. # 56), is DENIED as MOOT.
4. The Clerk of the Court is DIRECTED to remove the above-styled case from the trial docket.
The Court will enter a separate final judgment consistent with this Memorandum Opinion and Order.
She also alleges that a white male co-worker asked her "why all black guys liked to play with their genitals." Id. at 4, ¶ 18. The coworker then allegedly proceeded to "make sexually inappropriate references to his own genitalia, stating that when a man got to be his age, `you build a shed to put your tools under,' and `you may not see it, but when you whistle for it, it will come out.'" Id. Another male co-worker responded to these comments by stating, "Just because you see gray on top, it doesn't mean there is no fire in the furnace." Id. at 4, ¶ 19. Summers understood this to be referring to male genitals. Id.
Finally, Summers alleges discrimination in the job assignments given to her. Id. at 4, ¶ 20 ("[Summers] was also treated differently then her white male co-workers in job assignments. [She] was not allowed to process inmates and/or to fingerprint inmates as were the male officers. Further, [she] was not allowed to use the computer as were the male officers.").
Furthermore, on October 2, 2002, Summers made an arrest without appropriate backup and received a written warning for a Minor offense. Id. at 7. She was also involved in second motor vehicle collision on November 17, 2003. Id. After the Employee Safety/Committee Accident Review Board determined that Summers was "careless and had caused or contributed to the accident," she received a five-day suspension. Id.
Summers also argues that "the investigation uncovered numerous problems with [the City of Dothan's] procedures and uncovered facts which suggested that a number of [the City of Dothan's] employees were potentially responsible for the absence of the complaint." (Doc. # 39, at 6). For example, she points out that Corp. Brackin's report states that if Sergeant William Banks ("Sgt. Banks")—the officer who booked Shack at the jail— "`would have placed a blank complaint [form] with the arrest report or insured that Officer Summers pulled the complaint [form] the end result could have been possibly avoided.'" Id. at 9 (emphasis omitted) (quoting Doc. # 33 Ex. F, Powell Aff. Ex. B). Similarly, on April 28, 2006, Shack filled out an Inmate Request/Grievance Form seeking to use the phone and become a trustee. Id. She contends that Sergeant David Lewis ("Sgt. Lewis")—the officer who responded to the grievance—"took thirty-three days to respond to [it] and then failed to check with the Magistrate's office to determine whether Shack was properly incarcerated." (Doc. # 39, at 9) (emphasis omitted). Corp. Brackin's investigation determined that if Sgt. Lewis had cross-referenced the Detention records, showing the open criminal trespassing charge, with the Magistrate records, then "the end result could have possibly been avoided." (Doc. # 33 Ex. F, Powell Aff. Ex. B).
(Doc. # 33 Ex. E, McKay Aff. Ex. B) (emphasis added). The Equal Opportunity Plan further specifies an official policy of nondiscrimination in the areas of recruitment, hiring, the terms and conditions of employment, promotions, and contracting. Id. Additionally, the grievance procedure provided in the Personnel Rules states an official policy against retaliation for complaints. Id. Ex. A.
(Doc. # 33 Ex. E, McKay Aff. Ex. B § 11-80(1)) (emphasis added).
248 F.Supp.2d at 1115.
Here, this Court has been unable to ascertain any direct evidence of discrimination. In fact, Summers herself relies upon the circumstantial evidence standard set forth in McDonnell Douglas. (Doc. # 39, at 19-20).
The lack of strict formulation for a prima facie case of discrimination refers to the several ways that a plaintiff can establish an inference of discrimination. See Nix v. WLCY Radio/Rahall Comm'ns, 738 F.2d 1181, 1185 (11th Cir.1984) ("The prima facie case method was never intended to be rigid, mechanistic, or ritualistic. A prima facie case of discriminatory discharge may be established in different ways.") (citations omitted), reh'g en banc denied, 747 F.2d 710 (11th Cir.1984). For example, a plaintiff can establish the fourth and final element for a discharge-discrimination case, as here, by showing either "the plaintiff was subject to differential treatment, that is, he was either (a) replaced by someone who was not a member of the plaintiff's protected class or (b) a similarly situated employee who was not a member of the protected class engaged in nearly identical conduct and was not discharged." Keel v. Roche, 256 F.Supp.2d 1269, 1285 (M.D.Ala.2003) (emphasis in original) (citations omitted), aff'd, 99 Fed. Appx. 880 (11th Cir.2004); see also Nix, 738 F.2d at 1185 (stating that the fourth element in such a case can be the showing that the plaintiff was fired "and `that the misconduct for which [he] was discharged was nearly identical to that engaged in by [an employee outside the protected class] whom [the employer] retained'") (citing Davin v. Delta Air Lines, Inc., 678 F.2d 567, 570 (5th Cir.1982)).
Because Summers has not presented any evidence or argument respecting the race or gender of her replacement, this Court will consider her claims under the similarly-situated-employees standard. While the burden "is not onerous," Summers must still establish the existence of similarly situated employees outside of her class who were treated more favorably. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); see also Miller-Goodwin v. City of Panama City Beach, Fla., 385 Fed. Appx. 966, 971 n. 2 (11th Cir.2010) ("[N]o plaintiff can make out a prima facie case by showing just that she belongs to a protected class and that she did not violate her employer's work rule. The plaintiff must also point to someone similarly situated (but outside the protected class) who disputed a violation of the rule and who was, in fact, treated better.").
