Sabrina Jackson v. State of Alabama Department of, et al

Filing

Opinion issued by court as to Appellant Sabrina C. Jackson. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 15-12441

Date Filed: 02/22/2016

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-12441
Non-Argument Calendar
________________________
D.C. Docket No. 2:14-cv-00018-MHT-SRW

SABRINA C. JACKSON,
Plaintiff-Appellant,
versus
STATE OF ALABAMA DEPARTMENT OF CORRECTIONS,
KIM T. THOMAS,
individually and in his official capacity (terminated 2/18/2014)
as Commissioner of the State of Alabama Department of Corrections,
LEON FORNISS,
individually and in his official capacity (terminated 2/18/2014)
as a Warden with the Alabama Department of Corrections,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(February 22, 2016)

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Before HULL, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Sabrina Jackson, a former employee of the Alabama Department of
Corrections, appeals from the district court’s grant of summary judgment in favor
of the Alabama Department of Corrections (“the Department”), Leon Forniss, and
Kim Thomas, (“the Defendants”), in her employment discrimination lawsuit
alleging sexual harassment, racial discrimination, and retaliation, under Title VII,
the Equal Protection Clause, the First Amendment, and 42 U.S.C. §§ 1981 and
1983. Jackson’s complaint alleged that she was sexually harassed by Forniss, the
warden of the prison where she was employed, and then terminated for
complaining about that harassment and the treatment of inmates at Tutwiler Prison
for Women. Jackson, a black female, also alleged that she was terminated for
being in an altercation with a white coworker, whereas black employees involved
in altercations with other black employees were not terminated.
On appeal, Jackson argues that the district court erred in determining that the
sexual harassment that she alleged was not sufficiently severe or pervasive to
establish a claim for a hostile work environment, or sufficiently causally connected
with her termination to establish a claim for a tangible employment action.
Jackson further argues that the district court erred in granting summary judgment
on her retaliation and discrimination claims because the record creates a genuine
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question of material fact as to whether the Department’s proffered reason for her
termination, namely, that Jackson was the aggressor in a physical altercation with a
coworker, was pretextual.
We review the district court’s grant of summary judgment de novo. Williams
v. BellSouth Telecom, Inc., 373 F.3d 1132, 1134 (11th Cir. 2004). Summary
judgment is appropriate 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). A genuine factual dispute exists if the jury could return a verdict for
the non-moving party. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1085 (11th
Cir. 2004). Speculation does not create a genuine issue of fact. Cordoba v.
Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005).
I.
Jackson first argues that the sexual harassment she faced was sufficiently
frequent and severe to create a hostile working environment, and, even if it was
not, she could establish a claim for sexual harassment under the theory of a
tangible employment action. Because the elements and analysis of a sexual
harassment claim is identical under Title VII and the Equal Protection clause, we
jointly analyze both claims under the applicable Title VII law. See Hardin v.
Stynchcomb, 691 F.2d 1364, 1369 n.16 (11th Cir. 1982)

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Title VII of the Civil Rights Act of 1964 prohibits employers from
discriminating against any individual with respect to her compensation, terms,
conditions, or privileges of employment, because of such individual’s race or sex.
42 U.S.C. § 2000e–2(a)(1). Sexual harassment can constitute discrimination based
on sex for purposes of Title VII. Johnson v. Booker T. Washington Broad. Serv.,
Inc., 234 F.3d 501, 508 (11th Cir. 2000). Our cases describe that sexual
harassment claims may arise in two forms: through a tangible employment action,
such as a pay decrease, demotion, or termination, or through the creation of a
hostile work environment caused by sexual harassment that is sufficiently severe or
pervasive to alter the terms and conditions of employment. Baldwin v. Blue
Cross/Blue Shield of Ala., 480 F.3d 1287, 1300 (11th Cir. 2007).
To establish a sexual harassment claim based on a theory of hostile work
environment, a plaintiff must show: (1) that she belongs to a protected group; (2)
that she has been subject to unwelcome harassment; (3) that the harassment was
based on a protected characteristic; (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) that the employer is
responsible for such environment under either a theory of vicarious or direct
liability. Johnson, 234 F.3d at 508.

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Harassment is severe or pervasive for Title VII purposes only if it is both
subjectively and objectively severe and pervasive. Id. at 509. Harassment is
subjectively severe and pervasive if the complaining employee perceives the
harassment as severe and pervasive, and harassment is objectively severe and
pervasive if a reasonable person in the plaintiff's position would adjudge the
harassment severe and pervasive. Id. In determining whether harassment is
objectively severe or pervasive, courts consider the frequency of the conduct; the
severity of the conduct; whether the conduct is physically threatening or
humiliating, or a mere offensive utterance; and whether the conduct unreasonably
interferes with the employee’s job performance. Id.
Termination will support a tangible employment action claim only if it was
caused by discrimination. Baldwin, 480 F.3d at 1300. If the alleged harasser
makes the decision to terminate, an inference arises that there is a causal link
between the harasser’s discriminatory animus and the employment decision.
Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1247 (11th Cir. 1998). If
the harasser was not the decisionmaker, the plaintiff cannot benefit from that
inference of causation. See id. at 1248.
As the basis for her sexual harassment claim, Jackson alleges the following
instances of harassment over the roughly three months that she worked with
Forniss: (1) on three or four occasions, Forniss ordered her to sit near him after
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tightening his pants around his crotch, displaying the outline of his genitals; (2) on
two occasions, Forniss stood close enough behind her while she was sitting at the
computer that she could feel his breath on the back of her neck; and, (3) on about
four occasions, he told her she looked good or smelled good.
On review of the record, drawing all reasonable inferences in the light most
favorable to Jackson, the nonmoving party, we find that no reasonable jury could
conclude that this conduct was sufficiently severe or pervasive to amount to a
hostile work environment.
As to Jackson’s tangible employment action theory, she does not get the
benefit of the inference created by the harasser and decisionmaker being the same
person, because Forniss was not the decisionmaker. See Llampallas, 163 F.3d at
1247. Furthermore, Jackson cannot establish that her termination was causally
related to her rejection of Forniss’s alleged sexual advances because she was
terminated by another decisionmaker after a full and independent investigation that
concluded that she was the aggressor in an altercation with a coworker, and other
witnesses corroborated all or part of her coworker’s version of the altercation.
On review of the record, drawing all reasonable inferences in favor of
Jackson, we find that no reasonable jury could conclude that Jackson was
terminated for rebuffing Forniss’s alleged sexual advances. Therefore, the district

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court did not err in granting summary judgment to the Defendants on Jackson’s
sexual harassment claims.
II.
Jackson next argues that the district court erred in granting summary
judgment to the Defendants on her retaliation and race discrimination claims under
Title VII and the First Amendment because the evidence she presented raised a
genuine question of material fact as to whether the Department’s proffered reason
for her termination was pretextual. As evidence of pretext, Jackson argues that she
was not provided an opportunity to tell her side of the story; that the Department’s
policies recommend suspension, rather than termination, for a first offense of
fighting; and that Jackson was treated differently than the similarly situated white
coworker with whom she fought. Jackson also points to altercations between black
employees in which neither employee was fired as raising a genuine question of
material fact as to whether the reasons given for her termination were pretextual.
Under the First Amendment, whether a public employee suffered retaliation
is determined by reference to a four part test. Morgan v. Ford, 6 F.3d 750, 754
(11th Cir. 1993). First, a court must determine “whether the employee's speech
may be fairly characterized as constituting speech on a matter of public concern.”
Id. (internal citations omitted). Second, if the speech is a matter of public concern,
the court must then weigh “the employee's first amendment interests against the
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interest of the state, as an employer, in promoting the efficiency of the public
services it performs through its employees.” Id. Third, it must then examine
whether the plaintiff has established that the speech played a “substantial part” in
the employer's decision to discharge the employee. Id. Fourth, if the court
determines that the plaintiff has presented sufficient evidence to establish that the
speech was a substantial motivating factor in the subsequent employment decision,
“the state must prove by a preponderance of the evidence that it would have
reached the same decision even in the absence of the protected conduct.” Id.
Title VII provides that it shall be an unlawful employment practice for an
employer to discriminate against any employee for opposing any practice made
unlawful by Title VII, or for making a charge under Title VII. 42 U.S.C.
§ 2000e-3(a). The burden of proof in Title VII retaliation and disparate treatment
cases is governed by the framework established in McDonnell Douglas v. Green,
411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Under that framework,
once a plaintiff has established a prima facie case of retaliation, the burden shifts to
the defendant to rebut the presumption of retaliation by producing legitimate
reasons for the adverse employment action. Wilson, 376 F.3d at 1087. If the
defendant carries that burden, the plaintiff must demonstrate that the defendant’s
proffered reason was merely a pretext to mask retaliatory actions. Hairston v.
Gainesville Sun Pub. Co., 9 F.3d 913, 919 (11th Cir. 1993).
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To establish a prima facie case of retaliation, a plaintiff must show that she
engaged in protected activity, suffered an adverse action, and that a causal
connection existed between the two. Bryant v. Jones, 575 F.3d 1281,
1307-08 (11th Cir. 2009). To establish a prima facie case of disparate treatment, a
plaintiff must show that: (1) she was a member of a protected class; (2) she was
qualified to do the job; (3) she was subjected to an adverse employment action; and
(4) she was treated less favorably than similarly situated individuals outside her
protected class. Burke-Fowler v. Orange Cty., Fla., 447 F.3d 1319, 1323 (11th Cir.
2006). To make a comparison of the plaintiff's treatment to that of non-minority
employees, the plaintiff must show that she and the other employees are similarly
situated in “all relevant respects.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th
Cir. 1997). In determining whether employees are similarly situated for purposes
of establishing a prima facie case, it is necessary to consider whether the
employees are involved in or accused of the same or similar conduct and are
disciplined in different ways. Id.
The inquiry into pretext centers on the employer’s beliefs, not the
employee’s beliefs. Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253,
1266 (11th Cir. 2010). A plaintiff may not establish that an employer’s proffered
reason is pretextual merely by questioning the wisdom of the employer’s reason, as

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long as the reason is one that might motivate a reasonable employer. Pennington
v. City of Huntsville, 261 F.3d 1262, 1267 (11th Cir. 2001).
Assuming, without deciding, that Jackson could establish a prima facie
claim of discrimination, we do not believe that a reasonable jury could find that the
Departments proffered reason for terminating Jackson was pretextual. The record
indicates that the Department’s policies included an option to enhance punishment
in light of aggravating circumstances, which was used here. Furthermore, Jackson
and the white coworker were not similarly situated, because Jackson does not
claim that her coworker ever hit her, and they were not similar in their conduct or
culpability. See Holifield, 115 F.3d at 1562. Jackson has presented no evidence
that there were any physical altercations between black employees where neither
employee was fired, other than overheard conversations and gossip, and such
speculation is insufficient to create a genuine issue of material fact. See Cordoba,
419 F.3d at 1181.
The defendants presented sufficient evidence to show that they reasonably
believed that she was the aggressor in the altercation, and it is the employer’s
beliefs that are relevant. See Alvarez, 610 F.3d at 1266; Pennington, 261 F.3d at
1267. A reasonable jury could not conclude that the Departments proffered reason
for terminating Jackson was pretextual. Therefore, the district court did not err in

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granting summary judgment on Jackson’s race discrimination and retaliation
claims
For similar reasons, Jackson’s First Amendment retaliation claim fails. 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, a reasonable jury would have to conclude that the
defendants would have terminated Jackson even in the absence of her complaints.
AFFIRMED.

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