MYRON H. THOMPSON, District Judge.
Plaintiff Sabrina Jackson, a former employee of the Alabama Department of Corrections ("ADOC"), filed suit against defendants ADOC, former ADOC Commissioner Kim Thomas, and ADOC Warden Leon Forniss. Under Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. §§ 1981a, 2000e to 2000e-17), and the Equal Protection Clause (as enforced through 42 U.S.C. § 1983), Jackson sues ADOC, Thomas, and Forniss for sexual harassment. Under Title VII, she sues ADOC for race discrimination and retaliation. And, under the First Amendment (as enforced through § 1983), she sues Thomas and Forniss for violation of her right to free speech. The court has original jurisdiction under 28 U.S.C. §§ 1331 (federal question) and 1343 (civil rights) and 42 U.S.C. § 2000e-5(f)(3) (Title VII).
This cause is now before the court on the defendants' motions for summary judgment. Summary judgment will be granted in favor of all defendants on all claims.
"A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought. 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). The court must view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party.
The following facts are taken in the light most favorable to Jackson. Jackson, an American woman of African descent, worked for ADOC as an administrative assistant. She first worked at Tutwiler Prison for Women and later was transferred to Staton Correctional Facility. After an altercation with a coworker at Staton, she was transferred briefly to the ADOC central office before being terminated.
On February 6 or 7, 2012, while working at Tutwiler Prison, Jackson met with Associate Commissioner James DeLoach and informed him that the prisoners at Tutwiler were being mistreated, harassed, and sexually abused, and that the abuse was being covered up by the administration. DeLoach offered to transfer her to a position at Staton Correctional Facility to protect her from retaliation for reporting the mistreatment, and she agreed to the transfer. Later that day, she heard DeLoach say to Commissioner Thomas, "let me speak to you about what Ms. Jackson has just informed me of what was going on at Tutwiler." Jackson Deposition (doc. no 31-2), at 83:9-14. DeLoach and Thomas went into DeLoach's office, and Jackson heard nothing further. Soon thereafter, she was transferred to Staton.
Jackson did not complain to anyone else about the conditions at Tutwiler Prison until May 25, 2012, when she emailed Commissioner Thomas about the conditions for prisoners at Tutwiler.
Beginning immediately after her transfer to Staton Correctional Facility, and throughout her approximately three-month tenure there, Jackson had a troubled relationship with her supervisor, Warden Forniss. On three or four occasions, Forniss called her into his office and asked her to sit near him on the same side of his desk. "At that point," she testified, "he would pull his pants leg tight, have a seat in his chair, where the pants sit tight around his genitals. Then he would turn his chair directly facing me." Jackson Deposition (doc. no 31-2), at 43:21-44:1. She repeatedly told him that she did not feel comfortable sitting there and that she would "prefer to sit on the other side of the desk" if Forniss chose to sit in that way.
On two other occasions, Forniss approached Jackson from behind while she was working at her desk and got so close to her that she could feel his breath on her neck. This made her uncomfortable. Also, on four separate occasions, he commented that he liked the way she smelled or what she was wearing. She rebuffed him each time, using various tactics. For example, she mentioned her husband, to which he replied that he was also married. She also expressed to Forniss her discomfort with his comments and her view that such things should not happen in the workplace. Nevertheless, Forniss continued. Eventually, Forniss's behavior devolved to rudeness and hostility toward her. Rather than making suggestive comments, he made comments to the effect that she was incompetent. She described one such occasion on which she went to Forniss's office and mentioned having a technical problem with her computer. He replied, "It's not the computer; it's just the person operating it."
On May 4, 2012, Jackson told Warden Patricia Hood, a supervisor at Staton, about Forniss's behavior. By that time, all suggestive comments and acts giving rise to Jackson's sexual-harassment claim had ceased. She did not report the harassment to anyone else until the day she received notice of termination, June 25, at which point she reported the harassment to Commissioner Thomas.
On the same day she told Warden Hood about Forniss's harassment, Jackson got into a physical altercation with Tracy McMahon, a white coworker at Staton Correctional Facility. Jackson gave the following version of events leading to the altercation. Hood told Jackson to get a set of keys from McMahon, but, when Jackson asked for the keys, McMahon refused to give them to her. McMahon then started walking toward the business office, and Jackson followed her. Jackson saw the keys in the office and reached for them, but McMahon snatched the keys before she could reach them. Jackson told McMahon that Hood had told her to get the keys. McMahon then began to point her finger in Jackson's face, called her "bitch" and other offensive names, and tried to hit her. Investigative Report (doc. no. 31-8), at 35. Jackson put her hands up in a defensive posture, which caused McMahon to fall backward into and hit her head on a filing cabinet. McMahon sustained a sizeable gash on her head and had to go to the hospital and get five stitches. Three days later, Jackson was transferred to the ADOC central office.
Errick Demus of ADOC's Investigations and Intelligence Division investigated the incident. The story told by McMahon and other witnesses was different from Jackson's. McMahon asserted that Jackson was the aggressor in the incident and that Jackson had intentionally pushed her into the filing cabinet. McMahon did admit telling Jackson that she was "acting like a bitch" but denied trying to hit her. Investigative Report (doc. no. 31-8), at 3. Another coworker, Artina Jones, told the investigator that immediately after the incident, Jackson told her that "[McMahon] called me a bitch, . . . nobody calls me a bitch, [so] I pushed her ass into the filing cabinet."
A couple weeks later, after Demus submitted his report and conclusions that Jackson was the aggressor, Forniss requested that Jackson be dismissed. His request was sent to Associate Commissioner DeLoach and to the director of personnel, both of whom approved it. Jackson received a notice of pre-dismissal conference on June 25 and that day notified Commissioner Thomas that Forniss had sexually harassed her. Demus then investigated the sexual-harassment allegations but concluded that there was nothing to substantiate them.
Jackson had a pre-dismissal conference chaired by Associate Commissioner Grantt Culliver, at which she had the opportunity to tell her side of the story. Following the hearing, Culliver recommended that Jackson be terminated, and DeLoach and Commissioner Thomas approved the recommendation of dismissal.
Although Commissioner Thomas is white, many of the people involved in Jackson's termination, including investigator Demus, Wardens Forniss and Hood, Associate Commissioners DeLoach and Culliver, and witness Artina Jones, are black.
As stated, under Title VII and the Equal Protection Clause (as enforced through § 1983), Jackson sues ADOC, Thomas, and Forniss for sexual harassment; under Title VII, she sues ADOC for race discrimination and retaliation; and, under the First Amendment (as enforced through § 1983), she sues Thomas and Forniss for violation of her right to free speech. The court will first examine each set of claims in turn.
Jackson claims sexual harassment against all three defendants. Against ADOC, she proceeds under Title VII. Against Thomas and Forniss, she proceeds under the Equal Protection Clause of the Fourteenth Amendment, as enforced through 42 U.S.C. § 1983. Because the elements and analysis of sexual-harassment claims are identical under Title VII and the Equal Protection Clause,
Jackson proceeds under two theories of sexual harassment: hostile-work environment and tangible-employment action. The court addresses each theory below.
To prove a hostile-work-environment claim, an employee must show (1) that she is a member of a protected group; (2) that she has been subject to "unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature; (3) that the harassment [was] based on the sex of the employee; (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) a basis for holding the employer liable."
Jackson, as a woman, is a member of a protected class, and she has shown that Forniss's conduct was unwelcome. Taking the evidence in the light most favorable to Jackson, she has shown that Forniss subjected her to sexual advances and conduct of a sexual nature because of her sex: he directed her to sit close to and directly facing him after purposefully tightening his pants around his crotch; approached her from behind while she was sitting at her desk and came so close that she could feel his breath on the back of her neck; repeatedly commented on her appearance and smell; and continued doing so even after she made clear to him that she felt his actions were inappropriate and made her uncomfortable.
A court may consider four factors to determine whether, considering the totality of the circumstances, harassment was sufficiently severe or pervasive to objectively alter the employee's terms or conditions of employment: "(1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee's job performance."
Viewing the totality of the circumstances here, the court holds that the alleged harassment was not sufficiently severe or pervasive to rise to the level of a hostile-work environment. Jackson worked for Forniss for about three months. Jackson alleges that, on three or four occasions during part of that period, Forniss asked her to sit near him after tightening his pants around his crotch and that, on two more occasions, he got close enough to her to feel his breath on the back of her neck. On about four more occasions, he told her that she looked good or smelled good. Taking the evidence in the light most favorable to Jackson, the court is informed that she alleged about ten separate events during less than three months, which is not infrequent. However, Forniss's actions were not sufficiently severe to constitute actionable sexual harassment. While he engaged in some arguably offensive behavior, he did not try to touch or grab her, did not proposition her, and did not use any vulgar or sexually degrading language.
Jackson also proceeds under a theory of sexual harassment resulting in a tangible-employment action: that is, she contends that she was terminated because she refused to comply with Forniss's sexual advances.
In
Jackson has not put forth sufficient evidence to establish a causal link between her termination and her rejecting Forniss's advances. While Forniss did request her termination after Jackson had rejected his advances, he did not do so until after an independent investigation determined that she had intentionally assaulted and injured a coworker. The investigation report presented
Thomas, DeLoach, Culliver, Forniss, and the others involved in the decision had before them this clear evidence of a serious offense when they decided to terminate Jackson. Given such clear and overwhelming evidence that she initiated an altercation and seriously injured another employee, any reasonable employer would have terminated her. And while Jackson denies that she assaulted McMahon, her denial is of little moment: the key issue is whether the employer reasonably believed the employee committed the violation.
For these reasons, summary judgment will be granted in favor of all three defendants on Jackson's sexual-harassment claims.
Against ADOC, Jackson claims that, in violation of Title VII, she was terminated because of her race and in retaliation for complaining about the treatment of the female prisoners at Tutwiler.
On a race-discrimination claim based on disparate treatment, the plaintiff bears the ultimate burden of demonstrating with "significant probative evidence" that the employer's explanation is pretext and that race was a likely a factor in the treatment she experienced.
Here, even assuming that Jackson has established a prima-facie case for each claim, the court holds that her claims fail because she has not shown that the defendants' reason for terminating her was pretextual. ADOC proffered a legitimate, nondiscriminatory and nonretaliatory reason for terminating Jackson: she was involved in a fight in which she was the aggressor and caused significant injuries to a coworker. Though Jackson alleges that most of the witnesses against her lied, what is critical is whether ADOC's leaders had a good-faith belief that she had assaulted her coworker. As discussed above, overwhelming evidence—including her confession to a co-worker shortly after the event—supported the conclusion that Jackson had intentionally attacked and injured her coworker. Presented with the investigative report, ADOC's leaders reasonably believed that she had committed this serious offense. Furthermore, the offense clearly merited termination: any reasonable employer would terminate an employee who had seriously injured another employee after initiating an altercation. Accordingly, the defendants' reasonable belief that Jackson had assaulted her colleague overcomes her prima-facie case of discrimination and retaliation.
For the same reasons, Jackson has not met her ultimate burden of showing that the she would not have been terminated but for her complaints about the prisoners at Tutwiler. The defendants had, as stated, overwhelming evidence that Jackson had committed a serious rule violation, one for which any reasonable employer would terminate her. Given the seriousness of the offense, Jackson simply cannot show that ADOC would not have terminated her but-for her complaints.
Nor has Jackson demonstrated that race was probably a factor in her termination. As evidence of race discrimination, Jackson points out that McMahon, who is white, was not disciplined as harshly as Jackson for her involvement in the altercation. However, as stated, the evidence was simply overwhelming that Jackson was the one primarily at fault. Because their culpability for and involvement in the incident was not the same, the difference in punishment is justifiable; accordingly, that difference does not alone prove racial discrimination.
Moreover, while not dispositive, it is noteworthy that many, if not most, of the key players involved in her termination are black: investigator Errick Demus; witnesses Artina Jones and Warden Hood; Warden Forniss, who recommended her termination; Associate Commissioner Culliver, who oversaw her termination hearing; and Associate Commisioner DeLoach, who recommended her termination.
For all of the above reasons, the court further finds that no reasonable jury could conclude either that Jackson was terminated based on race or that she would not have been terminated but for retaliation for her complaint about the prisoners. Accordingly, summary judgment will be granted in favor of ADOC on Jackson's Title VII race-discrimination and retaliation claims.
Jackson also claims that, in violation of the First Amendment, Thomas and Forniss terminated her in retaliation for complaining about Forniss's alleged sexual harassment and for reporting the abuse of the female prisoners at Tutwiler.
A public employee may not be discharged in retaliation for speech protected under the First Amendment.
Even assuming that Jackson's complaints are a matter of public concern, that she prevails on the balancing test, and that her speech was a substantial motivating factor in her termination, Jackson cannot succeed on this retaliation claim. For as discussed above, no reasonable employer would allow an employee who had intentionally attacked and injured another employee to remain employed, and the defendants had overwhelming evidence that Jackson had done so. Therefore, Jackson has failed to rebut the defendants' showing that they would have terminated her even in the absence of her complaints. In addition, the court finds as a matter of law that a reasonable jury would have to conclude, by a preponderance of the evidence, that the defendants would have terminated Jackson even in the absence of her complaints.
Accordingly, summary judgment will be granted in favor of Thomas and Forniss on Jackson's First Amendment claim.
For the above reasons, summary judgment will be granted in favor of all defendants on all of Jackson's claims.
An appropriate judgment will be entered.
Also, the court need not address whether Title VII covers a claim of retaliation based on the abuse of female prisoners because it resolves the retaliation claim on other grounds.
