Summers v. The City of Dothan, Alabama et al

Filing 58

MEMORANDUM OPINION AND ORDER that: 1) The 44 Motion to Strike is GRANTED in part and DENIED in part; 2) The City of Dothan's 31 Motion for Summary Judgment is GRANTED; 3) The 36 Joint Motion to Extend is DENIED as MOOT; 4) DIRECTING the Clerk to remove the above-styled case from the trial docket. Signed by Hon. Chief Judge Mark E. Fuller on 10/29/2010. (furn: calendar, kg)(term: Jury Trial for 11/15/2010)(Attachments: # 1 Civil Appeals Checklist)(wcl, )

Summers v. The City of Dothan, Alabama

Doc. 58

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION S Y L V IA SUMMERS P la in tif f , v. C IT Y OF DOTHAN, ALABAMA, D e f e n d a n t. ) ) ) ) ) ) ) )

C A S E NO. 1:08-cv-784-MEF (W O ¯ P u b lis h )

M E M O R A N D U M OPINION AND ORDER T h is lawsuit is brought under 42 U.S.C. § 1983--for violations of the Fourteenth A m e n d m e n t and 42 U.S.C. § 1981--and under Title VII of the Civil Right Act of 1964, c o d if ie d at 42 U.S.C. §§ 2000e et. seq. ("Title VII"). Sylvia Summers ("Summers") c la im s sex discrimination, race discrimination, and retaliation against the defendant, City o f Dothan, Alabama ("City of Dothan"), allegedly occurring during her employment with th e Dothan City Police Department. (Doc. # 1, at 3, ¶ 14). The action is now before the C o u rt on three motions: (1) the City of Dothan's Motion for Summary Judgment, (Doc. # 3 1 ), filed on July 19, 2010; (2) Summers's Motion to Strike Defendant's Untimely E v id e n tia ry Submission and Argument ("Motion to Strike"), (Doc. # 44), filed on August 1 6 , 2010; and (3) the parties' Joint Motion to Extend Pretrial Deadlines ("Joint Motion to E x te n d " ) filed on October 20, 2010. (Doc. # 56). For the following reasons, this Court f in d s (1) that the Motion to Strike, (Doc. # 44), is due to be GRANTED in part and D E N IE D in part; (2) that the Motion for Summary Judgment, (Doc. # 31), is due to be G R A N T E D ; and (3) that the Joint Motion to Extend, (Doc. # 56), is due to be DENIED as

Dockets.Justia.com

MOOT. I. JURISDICTION AND VENUE T h is Court has subject matter jurisdiction over the case pursuant to 28 U.S.C. §§ 1 3 3 1 and 1343(a)(3)­(4) as well as 42 U.S.C. § 2000e-5(f)(3). Venue is proper in this d is tric t pursuant to 28 U.S.C. § 1391(b) and 42 U.S.C. § 2000e-5(f)(3). II. FACTS 1 AND PROCEDURAL HISTORY A . The Rules, Regulations, and Policies T h e City of Dothan's Personnel Rules and Regulations ("the Personnel Rules") g o v e rn its employees, all of whom are provided with a copy of the Personnel Rules in an e m p lo ye e handbook. (Doc. # 32, at 2). The Personnel Rules provide that "[i]t shall be th e duty of all City employees to comply with and to assist in the compliance of the p ro v is io n s 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 c a te g o riz e d into three classifications--Minor, Major, and Intolerable--based upon their le v e l of seriousness. Id. § 3-20(1)­(3). Although not defined, Minor offenses result in d is c ip lin e that is "designed to be positive in nature, whereby employees are accorded the o p p o rtu n ity to correct their behavior or performance." Id. § 3-20(1). Major offenses are th o s e "that are extremely serious in nature but not so serious that a discharge is required
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This recitation of "facts" is based upon the Complaint, (Doc. # 1), the Motion for Summary Judgment as well as the brief and evidence in support thereof, (Docs. # 31­33), and the Response in opposition to the summary judgment motion as well as the evidence in support thereof. (Docs. # 39­40). 2

upon committing the first such offense." Id. § 3-20(2). "The first `Major' offense c o m m itte d shall result in a `final warning' and a one (1) to twenty-(20) day suspension w ith o u t pay." Id. § 3-20(2)(a). "Violation of any subsequent `Major' offense within two ye a rs shall be grounds for discharge." Id. Included in the Personnel Rules is a "Schedule o f Disciplinary Penalties" that provides a non-inclusive list of infractions that fall into e a c h classification of offense. Id. §§ 3-40­3-44. Infractions considered to be Major o f f e n s e s include "[a]ction(s), or lack of action(s) that could endanger the life or health of s e lf or others, that could cause undue financial loss to the City, negligence in carrying out a s s ig n e d tasks or duties or responsibilities of one's position." Id. § 3-42(6). The P e rs o n n e l Rules also provide for a grievance and appeal procedure. Id. § 5-30. Under th is procedure, an employee first files a complaint with his supervisor. Id. § 5-30(1). "In th e presentation of grievances, grievants are assured of freedom from restraint, in te rf e re n c e , discrimination, or reprisal." Id. If unsatisfied with the department head's d is p o s itio n of the grievance, the employee can then appeal to the Personnel Board. Id. § 5 -3 0 (2 ). T h e City of Dothan maintains an Equal Opportunity and an Affirmative Action P la n ("The Equal Opportunity Plan") in order to assure "equal opportunity for all a p p lic a n ts and employees . . . based on a policy of nondiscrimination in personnel p ro c e d u re s and practices." (Doc. # 33 Ex. E, McKay Aff. Ex. B). The Plan prohibits d is c rim in a tio n because of, inter alia, race and gender, in such areas as recruiting, hiring,

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the terms and conditions of employment, and promotions. Id. P o lic e officers in the Dothan Police Department ("Police Department") are e x p e c te d to follow additional rules and regulations. (Doc. # 32, at 4). The Police D e p a rtm e n t "provides its offices with standard procedural guidelines in the form of P ro c e d u ra l General Orders (`PGOs')." Id. PGO 511 provide the criteria for, inter alia, a rre s t procedures, booking procedures, warrants, and jurisdiction. Id.; see also Doc. # 33 E x . F, Powell Aff. Ex. A. Section II(A) of PGO 511 provides that: [ t]h e Officer shall be responsible for obtaining warrants in State misdemeanor c a s e s the same working day, if possible, or the next working day the M a g is tra te is available. Prisoners charged with State misdemeanors or felonies w ill not be transferred without warrants unless ordered by the judge with ju ris d ic tio n in the particular offense or the sheriff of the affected county. (Doc. # 33 Ex. F, Powell Aff. Ex. A). Finally, police officers must also abide by the by the laws of the state, including R u le 19 of the Alabama Rules of Judicial Administration ("Rule 19"), which provides the re q u ire m e n ts for issuing traffic tickets. (Doc. # 32, at 4). Rule 19(6)(a)(i) states: E a c h law enforcement officer shall complete and sign the ticket, serve a c o p y of the completed ticket upon the defendant, and without unnecessary d e la y, normally within 48 hours, acknowledge under oath the facts alleged th e re in before any person within the judicial branch of government who is a u th o riz e d by the State of Alabama to administer oaths and file the court c o p ie s of the ticket with the court having jurisdiction over the alleged offense. (D o c . # 33 Ex. F, Powell Aff. Ex. D). Thus, officers in the Dothan Police Department are e x p e c te d to swear to Uniform Traffic Citations ("UTCs") within 48 hours after issuance.

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B. Underlying Facts i. Initial Hiring S u m m e rs is an African-American female. (Doc. # 32, at 5; Doc. # 39, at 2). On J u n e 12, 2000, the City of Dothan hired her as a Jail Security Officer. (Doc. # 32, at 5; D o c . # 39, at 2). Summers alleges that she was subjected to racial and sexual d is c rim in a tio n during her employment as a Jail Security Officer.2 (Doc. # 1, at 3, ¶ 16). D u rin g this time, Summers complained about the alleged discrimination to supervisors a n d management.3 (Doc. # 1, at 4, ¶ 21; Doc. # 32, at 5). Summers alleges that the City o f Dothan took no disciplinary action against these other employees in response to her c o m p la in ts . (Doc. # 1, at 4, ¶ 21). The City of Dothan does not contest that no such d is c ip lin a ry action was taken but does contend that it "fully investigated" Summers's

Specifically, she claims that one male co-worker told her that he did not like working with women and that she could not help him if they got into an altercation with a prisoner because women were not as strong as men. (Doc. # 1, at 3, ¶ 17). 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 co-worker 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."). Summers alleges that her supervisors retaliated against her by giving her "write ups for the same or similar actions taken by white, male co-workers and [giving her] poor job evaluations." (Doc. # 1, at 4, ¶ 22). 5
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complaints. (Doc. # 32, at 5). Summers claims that she was subjected to retaliation after h e r complaints in that "she received write ups for the same or similar actions taken by w h ite , male co-workers and she received poor job evaluations." (Doc. # 1, at 4, ¶ 22). She also asserts that her job was threatened. Id. ii. Subsequent Transfers D u rin g the City of Dothan's investigation into Summers's complaints of d is c rim in a tio n , she was promoted to Police Officer on April 22, 2001 and assigned to the P a tro l Division. (Doc. # 1, at 4, ¶ 23; Doc. # 32, at 5). Plaintiff alleges sexual and racial d is c rim in a tio n during her time in the Patrol Division. (Doc. # 1, at 4­5, ¶ 24) (claiming th a t if Summers "was sent out on a call and required backup, the back up [sic] was u n n e c e s s a rily delayed by being sent from across town instead of calling the closest officer a v a ila b le " ). Summers complained to her new supervisors. Id. at 5, ¶ 25. She further a lle g e s retaliation for these complaints. Id. at 4­5, ¶ 24. The City of Dothan contends, a n d Summers does not dispute, that she "received a number of disciplinary infractions a n d had a number of performance issues" throughout 2002 and 2003. (Doc. # 32, at 6).4

Specifically, in May of 2002, Summers received a 12-hour suspension for a motor vehicle collision that occurred on April 1, 2002, which was determined to be a Major offense. (Doc. # 32, at 6). On May 9, 2002, Summers did not report for duty, which was the third time she had done so. Id. For this she received formal counseling and was charged with a Minor offense. Id. Also in May of 2002, Summers received a performance evaluation which noted that she needed to work on keeping track of time-sensitive deadlines, such as "turn[ing] in tickets, swear[ing] to complaints, and attend[ing] court and regular duty." Id. This performance evaluation also gave her an "unsatisfactory" score in the "dependability" category. Id. at 6­7. 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 6

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In or around May of 2004, Summers was transferred to the Environmental C o m p lia n c e Bureau. Id. at 7. In November of 2004, she was transferred to the Criminal In v e s tig a tio n s Division ("CID"), (Doc. # 1, at 5, ¶ 26; Doc. # 32, at 7), where she alleges f u rth e r discriminatory treatment as well as retaliation for her former complaints. (Doc. # 1 , at 5, ¶ 27).5 iii. The Shack Incident O n April 5, 2006, Officer Summers arrested Brian Shack ("Shack") for criminal tre sp a s s as well as several outstanding warrants. (Doc. # 32, at 10; Doc. # 39, at 4).6 O f f ic e r Joey Evans ("Officer Evans") was the assisting officer during the arrest and, a f te rw a rd s , transported Shack to the Dothan City Jail. (Doc. # 39, at 4). Shack was b o o k e d on the outstanding warrants as well as the new criminal trespassing charge. Id. According to Summers, the "usual practice" in situations where the arresting officer does n o t transport the arrestee to the jail is "for the transporting officer to fill out the first part o f the complaint form, attach it to the arrest report, and send it through channels where

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. Specifically, Summers alleges that she "was not assigned cases in the same manner as were her CID co-workers and was not allowed to work her cases as were the other officers in CID." (Doc. # 1, at 5, ¶ 28). She also claims that she was reprimanded for affiliating with other African-Americans and "told to curtail her contact with other African American [sic] officers while at work." Id. ¶ 29. According to Summers, another African-American co-employee also filed a written complaint of racial discrimination based upon this. Id. After this incident, Summers claims to have "raised concerns that the dispatchers and other police officers did not respond to her requests for backup." (Doc. # 39, at 4 n.2). 7
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ultimately it is posted on the `swear board' at the magistrate's office for the arresting o f f ic e r to sign." Id. at 5. "If a complaint is not properly turned in, the person remains in ja il without any record of an arrest." (Doc. # 32, at 10). With regards to Summers's a rre s t of Shack, no paperwork was completed by either Summers or Officer Evans so that th e Municipal Court had no record of his arrest. Id. As a result, Shack remained c o n f in e d in the jail for 104 days7 until a Magistrate Judge released him on July 17, 2006.8 (D o c . # 33 Ex. F, Powell Aff. Ex. B). D u rin g this time, on June 1, 2006, Summers claims that she submitted a written c o m p la in t to the Chief of Police, John Powell ("Chief Powell"), addressing her poor job e v a lu a tio n s , 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 a n d that she was subject to unequal and unfair treatment. Id. In support of this, Summers c ite s to a Police Officer's Statement of Events form dated June 1, 2006 with Chief Powell a s the recipient. Doc. # 39, at 2; see also Doc. # 33 Ex. B-35. Chief Powell, however, d e n ie s any knowledge of Summers's alleged complaints of discrimination or retaliation. (Doc. # 33 Ex. F, Powell Aff. ¶ 19). In July of 2006, Summers was transferred to the F irs t Squad Patrol Division. (Doc. # 1, at 5 ¶ 31).

In its brief, the City of Dothan states that Shack was in jail for 103 days, (Doc. # 32, at 10­11); however, the evidence they cite to--the memorandum from an internal affairs officer who investigated the incident--states that it was 104 days. (Doc. # 33 Ex. F, Powell Aff. Ex. B). The Magistrate Judge found that 37 of these days were applied to fines owed on other charges. (Doc. # 33 Ex. F, Powell Aff. Ex. B). 8
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In late July of 2006, Chief Powell learned of the Shack incident and assigned the m a tte r to Lieutenant Ray Owens ("Lt. Owens"), who then assigned it to Corporal John B ra c k in ("Corp. Brackin") in Internal Affairs for investigation. (Doc. # 32, at 11; Doc. # 3 9 , at 5). On January 8, 2007, Corp. Brackin completed his investigation and turned in h is 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 a rre s t being properly signed" until being released on July 17, 2006. Id. He stated that S u m m e rs did not go to the Magistrate's office to swear to the complaint until July 28, 2 0 0 6 , after being notified of Shack's release. Id. He also determined that this inaction s u b je c te d 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 c o m m itte d a Major offense under Personnel Rule 3-42(6).9 Id. On January 12, 2007,
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Corp. Brackin's investigation also contained a section entitled "Points of Concern or Checks and Balances." (Doc. # 33 Ex. F, Powell Aff. Ex. B). In this section, he suggested that "[s]pecific guide lines [sic] should be addressed as to who should start the complaint process." Id. He noted that PGO 511 "outlines that the arresting officer should swear to the complaint on the day of the arrest or the next business day." Id. However, he recommended that "[i]t should be the responsibility of the transporting [o]fficer to pull this complaint from the complaint cabinet and attach it to the arrest report." Id. (emphasis in original). 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 thirty9

Chief Powell then charged Summers with a Major offense and administered a final w ritte n warning a few days later. (Doc. # 1, at 5­6, ¶¶ 32­33; Doc. # 32, at 12). Summers did not appeal this determination to the Personnel Board. (Doc. # 32, at 12). During the investigation of Summers's arrest of Shack, Internal Affairs discovered th a t Officer Robert Cole ("Officer Cole") had also arrested Shack for criminal trespassing a n d failed to timely swear to the complaint. (Doc. # 32, at 12; Doc. # 33 Ex. F, Powell A f f . ¶ 8; Doc. # 39). Corp. Brackin also investigated this incident and turned in his report a n d recommendation on January 5, 2007. (Doc. # 33 Ex. F, Powell Aff. Ex. C). His in v e s tig a tio n revealed that Officer Cole had arrested Shack on November 22, 2005 and th a t he filled out an arrest complaint. Id. He did not sign it at this time because no M a g is tra te Judge was available. Id. According to Corp. Brackin's report and re c o m m e n d a tio n , the Magistrate's office then called Officer Cole to remind him to sign th e complaint form. Id. When Officer Cole arrived at the office, the complaint that he h a d completed earlier could not be found, so he left and did not return to sign it. Id. T h irte e n days after his arrest, Shack appeared in front of a Magistrate Judge, who d e te rm in e d that he had been in the jail for thirteen days without a signed complaint a g a in s t him. Id. The Magistrate Judge then nolle prossed the charge due to Officer

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). 10

Cole's lack of action. Id. Corp. Brackin determined that Cole's inaction also subjected th e City of Dothan to undue financial loss. Id. However, he recommended that Officer C o le receive a Minor offense for violating Personnel Rule 3-41(7),1 0 id., which he did re c e iv e . (Doc. # 32, at 13; Doc. # 39, at 12). iv. The Missing UTCs and Summers's Termination O n March 15, 2007, Summers issued three UTCs to motorists in Dothan. (Doc. # 3 2 , at 16). However, she did not swear to the UTCs within 48 hours as required by Rule 1 9 . Over one month later, on or around April 17, 2007, one of the motorists went to the M a g is tra te 's office to pay the traffic ticket; however, there was no record of the ticket b e c a u s e Summers had failed to turn in the three UTCs. (Doc. # 32, at 16; Doc. # 39, at 1 3 ­ 1 4 ). Another police officer who "had spoken to the motorist regarding the missing U T C " called Sergeant Benny Baxley ("Sgt. Baxley") who then informed Lieutenant Roy W o o d h a m ("Lt. Woodham") of the missing UTCs. (Doc. # 32, at 16­17; Doc. # 39, at 1 3 ­ 1 4 ). Investigating at Lt. Woodham's request, Sgt. Baxley met with Summers and d is c o v e re d that she had the unsworn UTCs tucked in to the backside of her book. (Doc. # 3 2 , at 17; Doc. # 39, at 14). Summers immediately went to the Magistrate's office and s w o re 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

Personal Rule 3-41(7) states that a Minor offense includes "[i]naccura[cy], careless[ness], failure to comply with standard procedures, [and] mak[ing] recurring errors." (Doc. # 33 Ex. E, McKay Aff. Ex. A.) 11

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Chief Powell regarding Officer Summers. (Doc. # 32, at 18; Doc. # 39, at 14­15). Lt. W o o d h a m discussed her failure to comply with the 48-hour rule for swearing to UTCs a n d stated, "I personally know of several times in her employment where Officer S u m m e rs has been counseled in similar matters of time sensitive follow-up of police a c tio n s." (Doc. # 33 Ex. F, Powell Aff. Ex. E). He also noted Summers's receipt of a M a jo r offense less than six months earlier for the Shack incident. Id. Chief Powell again c o n ta c te d Lt. Owens in Internal Affairs to investigate the matter and also referred it to the le g a l department. (Doc. # 32, at 19). After completing its investigation, Internal Affairs re c o m m e n d e d charging Summers with a Major category offense. Id. "Based on [ S u m m e rs's ] conduct, Chief Powell made the decision to administer a write-up for a m a jo r category offense in accordance with the [Personnel Rule] 3-42(6)." Id.11 O n June 20, 2007, at 4:07 p.m., Summers was served with notice of a D e te rm in a tio n Hearing set for June 22, 2007, in which she was to be charged with her s e c o n d Major offense for her failure to timely turn in the three UTCs. Id. at 21. That s a m e day, at 11 p.m., Summers faxed a written statement to the Equal Employment O p p o rtu n ity Commission ("EEOC") alleging sex and race discrimination.1 2 Id. At her On June 12, 2007, Summers met with Captain Larry Draughon ("Captain Draughon") and complained about the alleged unfair treatment by her male supervisors--including, Lt. Woodham and Sgt. Baxley--as well as her problems with the dispatchers. (Doc. # 1, at 6, ¶¶ 37­38; Doc. # 32, at 20). She told him that "she was not treated fairly by her supervisors, had been told they were `out to get her,' and complained about Lt. Woodham making remarks about her wearing a dress suit." (Doc. # 1, at 6, ¶ 38). At this time, she also requested a transfer to another shift. (Doc. # 32, at 20).
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In her Response, Summers does not contest the timing of these two events. 12

Determination Hearing, Summers argued that her failure to submit the UTCs was a "good f a ith mistake." Id. On June 25, 2007, Summers's employment with the Police D e p a rtm e n t was terminated for receiving two Major offenses within six months. Id. at 2 2 . She appealed her termination. Id. The City of Dothan received notice of Summers's EEOC charge on July 3, 2007, e ig h t days after her termination. Id. at 21. On July 10, 2007, Summers amended her E E O C charge to reflect her termination. Id. at 22. Finally, on August 1, 2007, S u m m e rs 's appeal was heard by the Personnel Board. Id. For Summers's appeal, her m e rit system attorney had subpoenaed the Police Department for the UTC records of o th e r police officers. (Doc. # 39, at 15). The evidence produced demonstrated several p re v io u s ly 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, 2 0 0 7 . (Doc. # 32, at 22). C. Procedural History O n September 23, 2008, Summers filed this action pursuant to § 1983--for v io la tio n s of the Equal Protection Clause of the Fourteenth Amendment and § 1983--and T itle VII, alleging discrimination on the basis of race and gender in the form of disparate tre a tm e n t as well as retaliation for complaining of such discrimination during her e m p lo ym e n t with the City of Dothan. (Doc. # 1).1 3 Count II alleges race and sex

Count I alleged race and sex discrimination as well as retaliation in violation of Title VII against Chief Powell in his official capacity. (Doc. # 1, at 8­9, ¶¶ 51­60). However, Count I 13

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discrimination as well as retaliation in violation of Title VII. Id. at 9­10, ¶¶ 61­70. Count III claims race discrimination and retaliation in violation of the Equal Protection C la u s e of the Fourteenth Amendment and § 1981, brought pursuant to § 1983. Id. at 1 1 ­ 1 2 , ¶¶ 71­84. Finally, Count IV alleges sex discrimination and retaliation in violation o f the Equal Protection Clause of the Fourteenth Amendment, brought pursuant to § 1 9 8 3 . Id. at 12­14, ¶¶ 85­98. On July 19, 2010, the City of Dothan filed a Motion for Summary Judgment as to a ll of these counts, (Doc. # 31), a brief in support of this motion, (Doc. # 32), and an e v id e n tia ry submission. (Doc. # 33). Summers filed Plaintiff's Memorandum in O p p o s itio n to Defendant's Motion for Summary Judgment ("the Response") on August 5, 2 0 1 0 . (Doc. # 39). One week later, on August 12, 2010, the City of Dothan filed D e f e n d a n t's Reply Brief in Support of its Motion for Summary Judgment ("the Reply"). (Doc. # 41). The City of Dothan also filed another evidentiary submission, (Doc. # 42), in c lu d in g new and additional evidence in support of its motion for summary judgment. In re s p o n s e , Summers filed her Motion to Strike such new and additional evidence. (Doc. # 4 4 ). III. DISCUSSION A . THE MOTION TO STRIKE S u m m e rs contends that the City of Dothan's Reply and evidentiary submission in

was dismissed by this Court's January 30,2009 order, (Doc. # 23), granting Chief Powell's motion to dismiss. (Doc. # 5). 14

support thereof "are improper because both contain additional evidence and argument that w e re 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 re q u ire m e n t that dispositive motions be filed by July 19, 2010 and that a "`brief and all s u p p o rtin g 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 D o th a n 's evidentiary submission in support of its reply brief: (1) Exhibit E, the affidavit o f Delvick J. McKay II; (2) Exhibit F, Summers' initial disclosures; and (3) Exhibit G, th e affidavit of Judge Rose Evans Gordon.1 4 Id. at 2 n.1. Similarly, she argues that c o n s id e ra tio n of this additional evidence would be inappropriate because she has not had th e opportunity to rebut it. Id. at 3­6. Despite this Court's Uniform Scheduling order, "[a]ccording to Rule 6(b), a court m a y enlarge the time period in which a party has to act, even upon motion made after the e x p ira tio n of the specified time period, where the failure to act was the result of `e x c u s a b le neglect.'" Osahar v. U.S. Postal Serv., 136 Fed. Appx. 259, 260­61 (11th Cir. 2 0 0 5 ) (citing Fed. R. Civ. P. 6(b)). However, the City of Dothan has not filed any motion f o r extension nor has it sought leave of this Court to file additional evidentiary

Exhibits A through D are the final deposition transcripts for Officers Benny Baxley, Michael Cirulli, Roy Woodham, and Joey Evans. (Doc. # 44, at 2 n.1). Summers herself submitted the rough draft forms of these depositions in her August 5, 2010 Response and "does not object to the submission of the final version of these transcripts." Id. Thus, Exhibits A through D will be considered in ruling on the summary judgment motion. 15

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submissions with its reply brief. Nor has the City of Dothan made an affirmative showing o f excusable neglect or of newly-discovered evidence. Therefore, this Court will not c o n s id e r such untimely additional evidence when ruling on the City of Dothan's motion f o r summary judgment. See Gary v. Ga. Dep't of Human Res., No. 4:03-CV-164(CDL), 2 0 0 5 U.S. Dist. LEXIS 46991, at *2­3 (M.D. Ga. Nov. 3, 2005) (refusing to consider an " u n tim e ly affidavit" because the plaintiff "filed no additional motion to extend the d e a d lin e " at issue and because she made no showing that the untimeliness was the result o f excusable neglect or that the affidavit's content was "newly discovered evidence e x tra c te d from a previously missing source") (citing Fed. R. Civ. P. 6(b)), aff'd, 206 Fed. A p p x . 849 (11th Cir. 2006); Mosley v. Meristar Mgmt. Co., LLC, 137 Fed. Appx. 248, 2 5 0 (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-oftim e affidavits.") (citing Useden v. Acker, 947 F.2d 1563, 1571­72 (11th Cir. 1991), cert. d e n ie d , Useden v. Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, 508 U.S. 959 (1 9 9 3 )), 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 " w a s not submitted with Defendant's original Motion for Summary Judgment, but only w ith Defendant's Reply Brief" because the plaintiff did "not have an opportunity to re s p o n d to this `new' evidence"), aff'd without opinion, 87 F.3d 1331 (11th Cir. 1996), r e h 'g en banc denied, 99 F.3d 1157 (11th Cir. 1996).

16

Additionally, Summers argues that this Court should strike an argument by the C ity of Dothan based upon Lt. Woodham's deposition. (Doc. # 44, at 7­9). She does not o b je c t to the inclusion of this deposition in the evidentiary supplement, since she herself f ile d 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 te s tim o n y-- n a m e ly, that Lt. Woodham was unaware that Summers was the officer who f a ile d to turn in the UTCs. Id. at 7­8. She contends that the actual testimony contradicts th is inference, or, in the alternative, that the testimony is ambiguous and should be c o n s tru e d in the light most favorable to her as the non-moving party. Id. at 7. Despite s u c h contentions, Summers admits that "[w]hether or not Lt. Woodham knew that Officer S u m m e rs wrote the UTCs at first is not important" because the punitive action at issue is th e memorandum he wrote to Chief Powell regarding the matter. Id. at 8. Since the m e m o ra n d u m referred to Summers and the UTC incident, she claims that there is no d is p u te that Lt. Woodham was aware that Officer Summers wrote the UTCs at the time he s e n t it to Chief Powell. Id. This Court declines to strike these legal arguments and will c o n s id e r 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 a n d DENIED in part. It is granted with respect to Exhibits E, F, and G of the Evidentiary S u b m is s io n in Support of Defendant's Reply Brief, (Doc. # 42), and this Court will not

17

consider arguments in the reply brief that are based upon that evidence.1 5 It is denied with re s p e c t to the arguments raised by the City of Dothan based upon Lt. Woodham's d e p o s itio n testimony. B. SUMMARY JUDGMENT STANDARD U n d e r Federal Rule of Civil Procedure 56(c), summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together w ith the affidavits, if any, show that there is no genuine issue as to any material fact and th a t the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. C a tr e tt, 477 U.S. 317, 322 (1986). The party asking for summary judgment "always b e a rs the initial responsibility of informing the district court of the basis for its motion, a n d identifying those portions of `the pleadings, depositions, answers to interrogatories, a n d admissions on file, together with the affidavits, if any,' which it believes demonstrate th e absence of a genuine issue of material fact."1 6 Id. at 323. The movant can meet this b u rd e n by presenting evidence showing there is no dispute of material fact, or by showing th e non-moving party has failed to present evidence in support of some element of its case o n which it bears the ultimate burden of proof. Id. at 322­23; see also Fitzpatrick v. City Summers advances other arguments as to why this evidence, or parts thereof, should be stricken. Because this Court finds the Exhibits and the City of Dothan's arguments based on them to be untimely, such additional reasons for striking need not be considered. "An issue is not genuine if it is unsupported by evidence, or if it is created by evidence that is `merely colorable' or is `not significantly probative.'" Lewis, 908 F. Supp. at 943­44. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). "Similarly, a fact is not material unless it is identified by the controlling substantive law as an essential element of the nonmoving party's case." Id. at 944 (citing Anderson, 477 U.S. at 248). 18
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of Atlanta, 2 F.3d 1112, 1115­16 (11th Cir. 1993) ("For issues, however, on which the n o n -m o v a n t would bear the burden of proof at trial, . . . `[t]he moving party may simply s h o w [ ]-- th a t is, point[] out to the district court--that there is an absence of evidence to s u p p o rt the non-moving party's case.'") (quoting U.S. v. Four Parcels of Real Property, 9 4 1 F.2d 1428, 1437­38 (11th Cir. 1991)). O n c e the moving party has met its burden, Rule 56(e) "requires the nonmoving p a rty to go beyond the pleadings and by [his] own affidavits, or by the `depositions, a n s w e rs to interrogatories, and admissions on file,' designate `specific facts showing that th e re is a genuine issue for trial.'" Celotex 477 U.S. at 324. To avoid summary judgment, th e nonmoving party "must do more than simply show that there is some metaphysical d o u b t as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U .S . 574, 586 (1986) (emphasis added). A plaintiff must present evidence demonstrating th a t he can establish the basic elements of his claim. Celotex, 477 U.S. at 322. A court ru lin g on a motion for summary judgment must believe the evidence of the non-movant a n d must draw all justifiable inferences from the evidence in the non-moving party's f a v o r. Anderson, 477 U.S. at 255. After the nonmoving party has responded to the m o tio n for summary judgment, the court must grant summary judgment if there is no g e n u in e issue of material fact and the moving party is entitled to judgment as a matter of la w . See Fed. R. Civ. P. 56(c). C . THE § 1983 CLAIMS

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Pursuant to § 1983, Summers brings claims for violations of the Fourteenth A m e n d m e n t-- n a m e ly race discrimination, gender discrimination, and retaliation--and § 1 9 8 1 -- n a m e ly race discrimination and retaliation. (Doc. # 1, at 11­14, ¶¶ 71­98); accord B u tts v. County of Volusia, 222 F.3d 891, 893 (11th Cir. 2000) ("[Section] 1983 c o n s titu te s 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, 731­36 (1989)). Section 1983 provides, in pertinent part: E v e ry person who, under color of any statute, ordinance, regulation, custom, o r usage, of any State . . . subjects, or causes to be subjected, any citizen of the U n ite d States . . . to the deprivation of any rights, privileges, or immunities s e c u re d by the Constitution and laws, shall be liable to the party injured in an a c tio n at law, suit in equity, or other proper proceeding for redress. 4 2 U.S.C. § 1983. Because of § 1983's requirement that the actions be taken under color o f state law, a plaintiff bears the burden of "demonstrat[ing] that `the conduct allegedly c a u s in g the deprivation of a federal right [is] fairly attributable to the State.'" Gene T h o m p s o n Lumber Co. v. Davis Parmer Lumber Co., 984 F.2d 401, 403 (11th Cir. 1993) (q u o tin g Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). Here, the City of Dothan contends that Summers has failed to present any evidence th a t the allegedly discriminatory actions complained of were done under the color of state la w . (Doc. # 32, at 25­26). Because this is an issue upon which Summers bears the u ltim a te burden of proof, her failure to present evidence in support of it would justify s u m m a ry judgment in favor of the City of Dothan as to the § 1983 claims. See Celotex,

20

477 U.S. at 322­23; Fitzpatrick, 2 F.3d at 1115­16. When considering the state action re q u ire m e n t, this Court must look to the particular discriminatory actions alleged--e.g. f irin g because of race or gender--as opposed to the more general action--e.g. firing. Denno ex. rel Denno v. Sch. Bd of Volusia County, Florida, 218 F.3d 1267, 1276 (11th C ir. 2000) (focusing the state action issue on whether a school had a policy of banning C o n f e d e ra te symbols, not on whether this action was pursuant to a more general policy p e rm ittin g the school to ban items), reh'g en banc denied, 235 F.3d 1347 (11th Cir. 2 0 0 0 ), cert. denied, 531 U.S. 958 (2000); Gordan v. Ottersbach, No. 93-2232-CIV-T1 7 A , 1997 U.S. Dist. LEXIS 3178, at *21 (M.D. Fla. Mar. 6, 1997) (looking to whether a n officer's actions of "seizing, arresting and charging [an individual] without probable c a u s e " were under color of state law for purposes of municipality liability). Under this color-of-state law requirement, a municipality can only be held liable u n d e r § 1983 "when execution of a government's policy or custom, whether made by its la w m a k e rs or by those whose edicts or acts may fairly be said to represent official policy, in f lic ts the injury." Monell v. Dep't of Soc. Servs. of New York, 436 U.S. 658, 694 (1 9 7 8 ); see also Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998) ("[A] m u n ic ip a lity may be held liable [under § 1983] for the actions of [an employee] only w h e n municipal `official policy' causes a constitutional violation.") (citing Monell, 436 U .S . at 694­95). Thus, to satisfy the under-color-of-state law standard, a plaintiff in a § 1 9 8 3 suit against a municipality must establish that the acts giving rise the injury arose

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from one of three sources: (1) "an official government policy"; (2) "the actions of an o f f ic ia l fairly deemed to represent government policy"; or (3) "a custom or practice so p e rv a s iv e and well-settled that it assumes the force of law." Denno, 218 F.3d at 1276.17 i. Official Policy S u m m e rs has failed to present evidence that any of the allegedly discriminatory a c tio n s were taken pursuant to an official policy. In fact, in her Response, she completely f a ile d to address the City of Dothan's arguments on this issue, discussing only the merits o f the underlying discrimination claim and making no mention of § 1983's requirement th a t the action be taken under color of state law. Additionally, the undisputed evidence b e f o re this Court establishes that the official policy of the City of Dothan was to prohibit ra c e and gender discrimination in all personnel procedures and practices and to prohibit re ta lia tio n for complaining of discrimination.1 8 This undisputed evidence also establishes

Where, as here, a plaintiff sues a municipality under § 1983, he cannot premise liability upon the doctrine of respondeat superior. See Monell, 436 U.S. at 691 ("[A] municipality cannot be held liable under § 1983 on a respondeat superior theory."); Gold, 151 F.3d at 1350 ("The Supreme Court has placed strict limitations on municipal liability under section 1983. There is no respondeat superior liability making a municipality liable for the wrongful actions of its [employees]."); see also Butts, 222 F.3d at 893 ("[A] plaintiff who sues a municipality under § 1983 for a violation of the rights contained in § 1981 may not rely upon the doctrine of respondeat superior.") (citing Jett, 491 U.S. at 731­36).
18

17

The City of Dothan's Equal Opportunity Plan states the following: The City of Dothan will implement a Civil Service System which offers equal opportunity for all applicants and employees and which will be based on a policy of nondiscrimination in personnel procedures and practices. . . . To this end, definite commitments derived from the policy include the policy and practice of the City of Dothan to . . . [i]nsure that all personnel procedures, policies, and actions, such as compensation, fringe benefits, transfers, layoffs, rehires, training programs, and social and recreational programs, will be administered without regard to race , creed, 22

the City of Dothan's official policy against racial or sexual harassment.19 ii. Official Representing Government Policy N o r has Summers presented evidence establishing the alleged discrimination re s u lte d 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 p o lic y, "the acting official must be imbued with final policymaking authority" in that his " d e c is io n s in the area are [not] subject to meaningful administrative review." Id. (c ita tio n s omitted). Summers's Complaint and Response include allegations of m istre a tm e n t by other police officers, by dispatchers, and by superiors such as Captain D ra u g h o n and Chief Powell. However, she has offered no evidence or argument re g a rd in g the policymaking authority of these persons within the particular area that their

national origin, handicapped persons, sex or age; except when sex or age is a bona fide occupational qualification; (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. The Personnel Rules state the following: The purpose of this policy is to help assure a working environment where all employees can maximize productivity in their jobs by eliminating offensive or threatening conduct that might interfere with maximum productivity. There are several types of anti-social behavior that can interfere with this goal including: (1) sexual harassment; (2) racial, religious and other forms of harassment and (3) [v]iolence and threats of violence. All of these types of behavior can distract employees from their job-related duties, and it is the policy of the City of Dothan to prohibit and eliminate these types of behaviors. (Doc. # 33 Ex. E, McKay Aff. Ex. B § 11-80(1)) (emphasis added). 23
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actions were undertaken. Additionally, the undisputed evidence establishes that the City o f 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 u n s a tis f ie d with the department head's disposition of the grievance, the employee can th e n 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 p o lic ym a k in g authority of any of the persons at issue, but the undisputed evidence e s ta b lis h e s that they are subject to administrative review. Summers has presented no e v id e n c e or argument that this administrative review is anything but meaningful. iii. Custom or Practice F in a lly, Summers has failed to establish that the allegedly discriminatory actions w e re undertaken pursuant to a "custom or practice so pervasive and well-settled that it a s s u m e s the force of law." Denno, 218 F.3d at 1276. To prove a pervasive custom or p ra c tic e , the plaintiff must establish a "`persistent and widespread practice'" of the a lle g e d acts of discrimination "about which the [City of Dothan] knew or of which p ra c tic e it had constructive knowledge, because `normally random acts or isolated in c id e n ts are insufficient to establish a custom.'" Id. at 1277 (quoting Church v. City of H u n tsv ille , 30 F.3d 1332, 1345 (11th Cir. 1994)). Here, not only has Summers failed to a rg u e a pervasive custom or practice of discrimination, but her main argument is that the C ity of Dothan did not follow its normal policies or customs with regards to disciplining

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and firing her. See, e.g., Doc. # 39, at 3 (arguing that Summers was disciplined for the U T C incident "even though the Police Department did not have a policy and practice of e n fo r c in g the 48 hour rule") (emphasis added). Summers also points to Officer Cole--a w h ite , male officer who turned in a complaint form for an arrestee but failed to sign it w ith in the applicable time period, resulting in the charges being dismissed after the u n s ig n e d complaint was lost. (Doc. # 39, at 11). She states that he was only charged with a Minor offense whereas she was charged with a Major offense for violating the same ru le . Id. at 12. Assuming these allegations are true, such isolated incidents are still in s u f f ic ie n t to establish a pervasive custom or policy. See Denno, 218 F.3d at 1277. In sum, Summers failed to proffer sufficient evidence to establish that the a lle g e d ly discriminatory acts were done under color of state law. Indeed, she has failed to e v e n argue the color-of-state-law requirement of § 1983 even after the City of Dothan d e m o n s tra te d her failure to present evidence on this issue. Thus, Summers has not e s ta b lis h e d a "genuine" factual dispute with a "real basis in the record" as to the underc o lo r-o f -s ta te -la w requirement. Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 919 (1 1 th Cir. 1993) (citing Matsushita, 475 U.S at 586­87), reh'g en banc denied, 16 F.3d 1 2 3 3 (11th Cir. 1994), reh'g denied, No. 92-2485, 1994 U.S. App. LEXIS 40941 (11th C ir. Feb. 16, 1994). Given that Summers bears the ultimate burden of proof on this issue, th is Court finds that the City of Dothan has met its burden on summary judgment and is e n title d to judgment as a matter of law on the § 1983 claims. Therefore, the City of

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Dothan's motion for summary judgment is due to be GRANTED with respect to the F o u rte e n th Amendment and § 1981 claims brought pursuant to § 1983. D . THE TITLE VII CLAIMS Title VII prohibits employers from "discriminat[ing] against any individual with re s p e c t to his compensation, terms, conditions or privileges of employment, because of s u c h 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 d is c rim in a tio n , and retaliation "with respect to discipline, her termination, and other te rm s , conditions, and privileges or her employment" in violation of Title VII. (Doc. # 1, a t 9­10, ¶¶ 62­70). Prior to examining the merits of Summers's Title VII claims, this C o u rt must first determine whether she has met the procedural requirements for bringing s u c h claims--namely, the 180-day time bar in 42 U.S.C. § 2000e-5(e)(1). i. The 180-Day Time Bar F o r Title VII claims, a plaintiff must satisfy the prerequisites of 42 U.S.C. § 2 0 0 0 e -5 (e )(1 ) before filing a private civil action. See Thomas v. Ala. Council on Human R e ls ., Inc., 248 F. Supp. 2d 1105, 1114 (M.D. Ala. 2003) (citing Nat'l R.R. Passenger C o r p . v. Morgan, 536 U.S. 101, 109 (2002)). Pursuant to this provision, a plaintiff must f ile a charge of discrimination with the EEOC "within one hundred and eighty days after th e alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e)(1); accord P ijn e n b u r g v. W. Ga. Health Sys., Inc., 255 F.3d 1304, 1305 (11th Cir. 2001) (11th Cir.

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2001) ("It is settled law that in order to obtain judicial consideration of [a Title VII] c la im , a plaintiff must first file an administrative charge with the EEOC within 180 days a f te r the alleged unlawful employment practice occurred."), reh'g en banc denied, 273 F .3 d 1117.2 0 "[I]f a plaintiff fails to file an EEOC charge before the 180-day limitations p e rio d , the plaintiff's subsequent lawsuit is barred and must be dismissed for failure to e x h a u s t administrative remedies." Thomas, 248 F. Supp. 2d at 1115 (citing Brewer v. A la b a m a , 111 F. Supp. 2d 1197, 1204 (M.D. Ala. 2000)). In deciding whether any of the alleged acts of discrimination and retaliation are u n tim e ly filed, this Court must determine when such acts occurred. Thomas, 248 F. Supp. 2 d at 1115. This determination in turn depends on whether the plaintiff has alleged a " h o s tile environment" claim or "discrete retaliatory or discriminatory acts such as te rm in a tio n of employment, failure to promote, denial of transfer, or a refusal to hire." Id. (c itin g Morgan, 536 U.S. at 110, 114). Because Summers alleges discrete incidents of d is c rim in a tio n and retaliation, each one "occurr[ed] on the day that it happen[ed]." Id.

The 180-day procedural time-bar is an integral part of the statutory scheme of bringing discrimination claims under Title VII. As the Thomas court stated: `[S]trict adherence' to this procedural requirement `is the best guarantee of evenhanded administration of the law.' Mohasco Corp. v. Silver, 447 U.S. 807, 826, 65 L. Ed. 2d 532, 100 S.C. 2486 (1980). By choosing this relatively short deadline, `Congress clearly intended to encourage the prompt processing of all charges of employment discrimination.' Id. Indeed, this procedural rule, is not a mere technicality, but an integral part of Congress' statutory scheme that should not `be disregarded by courts out of a vague sympathy for particular litigants.' Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 152, 80 L. Ed. 2d 196, 104 S. Ct. 1723 (1994). 248 F. Supp. 2d at 1115. 27

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As the Thomas court explained: " E a c h incident of discrimination and each retaliatory adverse employment d e c is io n constitutes a separable actionable `unlawful employment practice.'" M o r g a n , 122 S. Ct. at 2073. Consequently, "discrete discriminatory acts are n o t actionable if time barred, even when they are related to acts alleged in tim e ly filed charges." Morgan, 122 S. Ct. at 2072. Id . Therefore, all acts of alleged discrimination that occurred prior to 180-days before the f ilin g of Summers's EEOC charge are "untimely filed and no longer actionable." Morgan, 536 U.S. at 114. Here, Summers filed her EEOC charge on June 20, 2007 and amended that charge o n June 30, 2007 after she was terminated. (Doc. # 32, at 21; Doc. # 39, at 17). Only the te rm in a tio n of her employment covered by the amended charge and the acts of alleged d is c rim in a tio n that occurred within 180 days before the initial charge--namely, D e c e m b e r 22, 2006--are actionable. See Morgan, 536 U.S. at 114 ("[O]nly incidents that to o k place within the timely filing period are actionable."). On June 1, 2006, Summers w a s transferred to the First Squad Patrol Division. (Doc. # 1, at 5, ¶ 31). While a m e m b e r of First Squad Patrol, Summers's employment was terminated in June of 2007. Id. at 7, ¶ 43. Therefore, only the alleged acts of discrimination and retaliation that o c c u rre d while Summers was a part of the First Squad Patrol, including the termination of h e r employment, and after December 22, 2006 can serve as the basis for her Title VII c la im s . Although Summers is unclear as to what exactly are the allegedly discriminatory a c tio n s during this time period, at the very least, they include the discipline for the Shack

28

incident, the discipline for the UTC incident, and her termination. This Court finds that all o f Summers's Title VII claims relating to alleged discriminatory or retaliatory acts o c c u rrin g prior to December 22, 2006 are time-barred by the procedural requirements of 4 2 U.S.C. § 2000e-5(e)(1) and that the City of Dothan is entitled to judgment as a matter o f law for these claims. ii. The Disparate Treatment Claims In McDonnell Douglas Corporation v. Green, the Supreme Court set forth a b u rd e n -s h if tin g framework for disparate treatment claims under Title VII. 411 U.S. 792, 8 0 2 ­ 0 3 (1973). The plaintiff bears the initial burden of establishing a prima facie case of d is c rim in a tio n . Id. When direct evidence of discrimination is lacking,2 1 a plaintiff may e s ta b lis h disparate treatment with circumstantial evidence by "show[ing] (1) she belongs to a protected class; (2) she was qualified to do the job; (3) she was subjected to adverse e m p lo ym e n t action; and (4) her employer treated similarly situated employees outside her c la s s more favorably." Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008) (citing

Direct evidence of discrimination is "defined . . . as evidence which reflects `a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee.'" Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358 (11th Cir. 1999) (quoting Carter v. Three Springs Residential Treatment, 132 F.3d 635, 641 (11th Cir. 1998)), cert. denied, 529 U.S. 1109 (2000). In plainer language, direct evidence of discrimination consists of "`only the most blatant remarks, whose intent could be nothing other than to discriminate . . . .'" Id. at 1359 (citing Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081­82 (11th Cir. 1990); see also Earley, 907 F.2d at 1081 ("One example of direct evidence would be a management memorandum saying, `Fire [the plaintiff]­he is too old.'"). 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 19­20). 29

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Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003) (per c u ria m )); see also Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004) (" A plaintiff establishes a prima facie case of disparate treatment by showing that she was a qualified member of a protected class and was subjected to an adverse employment a c tio n in contrast with similarly situated employees outside the protected class.") (citing M c D o n n e l Douglas, 411 U.S. at 802), reh'g en banc denied, 116 Fed. Appx. 257 ( 2 0 0 4 ) .2 2 Summers correctly points out that "[t]he Eleventh Circuit `generally has eschewed an overly strict formulation of the elements of a prima facie case' and the inquiry at summary judgment is `whether an ordinary person could reasonably infer discrimination if the facts presented remain unrebutted.'" (Doc. # 39, at 19) (citing James v. Arrow Co., 75 F.3d 1528, 1531 (11th Cir. 1996)). However, even in James, the Eleventh Circuit pointed to similarly situated employees outside the protected class who received more favorable treatment as the evidence which established an inference of discrimination. 75 F.3d at 1533 (reversing grant of summary judgment for the employer in an age discrimination case where the plaintiff established that younger employees were hired when she was fired). 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-situatedemployees standard. While the burden "is not onerous," Summers must still establish the 30
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Under McDonnell Douglas, once the plaintiff has established a prima facie case of d is c rim in a tio n , the burden then shifts to the employer "to articulate some legitimate, n o n d is c rim in a to ry reason for the [adverse employment action]." 411 U.S. at 802; see also D a m o n , 196 F.3d at 1361. The employer has a burden of production, not a burden of p e rs u a s io n , and it need not persuade the court that it was actually motivated by the p ro f f e re d reasons. Wilson, 376 F.3d at 1087 (citing Burdine, 450 U.S. at 254­55). If an employer satisfies its burden by articulating a non-discriminatory reason, it re b u ts the presumption of discrimination created by the prima facie case. Id. "A plaintiff th e n 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 ("[A Title VII p la in tif f ] must be given a full fair opportunity to demonstrate by competent evidence that th e presumptively valid reasons for [the adverse employment action] were in fact a c o v e ru p for a . . . discriminatory decision."). H e re , the parties disagree over whether Summers has established a prima facie c a s e 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

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 (1981); see also Miller-Goodwin v. City of Panama City Beach, Fla., No. 09-12598, 2010 U.S. App. LEXIS 14038, at *12­14 n.2 (11th Cir. July 8, 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."). 31

arises over whether Summers can establish the third and fourth elements--namely a d v e rs e employment action and more favorable treatment of similarly situated employees o u ts id e of her protected classes--as to some or all of her remaining claims. See Doc. # 3 2 , at 29­41. There must be some evidence from which a reasonable factfinder would f in d discrimination--namely, evidence of similarly situated employees outside the p ro te c te d class who have been treated more favorably. That is lacking here. a. Standard for Similarly Situated Employees T o establish a prima facie case of discrimination, Summers must show that the C ity of Dothan treated similarly situated employees outside of her protected classes more f a v o ra b ly. In order for other employees to qualify as comparators, a plaintiff "must show th a t the `employees are similarly situated in all relevant aspects.'" Knight, 330 F.3d at 1 3 1 6 (quoting Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997)) (emphasis added); s e e , e.g., Morris v. Emory Clinic, Inc., 402 F.3d 1076, 1082 (11th Cir. 2005) (doctor d is c h a rg e d from clinic due to patient complaints about his conduct who could not show th a t he was replaced by someone outside his protected class or that a comparable person o u ts id e of his protected class received "nearly identical" complaints, but was not fired, f a ile d to establish a prima facie case); Silvera v. Orange County Sch. Bd., 244 F.3d 1253, 1 2 5 9 (11th Cir. 2001) (reversing judgment in favor of the plaintiff because the employer w a s entitled to judgment as a matter of law where plaintiff's comparator engaged in fewer in s ta n c e s of misconduct than plaintiff), cert. denied, 534 U.S. 976; Maniccia v. Brown,

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171 F.3d 1364, 1368-69 (11th Cir. 1999) (affirming summary judgment in the employer's f a v o r where the alleged misconduct of comparators was not sufficiently similar to support d is p a ra te treatment claim); Holifield, 115 F.3d at 1563 (affirming summary judgment w h e re the plaintiff failed to produce sufficient evidence that non-minority employees with w h ic h he compares his treatment were similarly situated in all aspects, or that their c o n d u c t was of comparable seriousness to the conduct for which he was discharged); J o n e s v. Gerwens, 874 F.2d 1534, 1540-42 (11th Cir. 1989); Nix, 738 F.2d at 1187 (A f ric a n -A m e ric a n plaintiff who was replaced by another African-American after te rm in a tio n for violation of work rule failed to make out a prima facie case of race d is c rim in a tio n because he did not meet his burden of showing that a white employee in s im ila r circumstances was retained while he was fired). In evaluating the similarity of the comparators identified by the plaintiff, the most im p o rta n t variables in a discriminatory-discipline case are the nature of the offenses c o m m itte d 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 id e n tic a l to prevent courts from second-guessing employers' reasonable decisions and c o n f u s in g apples and oranges." Maniccia, 171 F.3d at 1368. In making this analysis a c o u rt must keep in mind that "Title VII does not take away an employer's right to in te rp re t its rules as it chooses, and to make determinations as it sees fit under those ru le s [ .]" Id. at 1369. "Moreover, the actions of the employer toward the proffered

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comparators are only relevant if the decisionmaker knew of the prior rule violations by th e comparators and took no action against them." Walton v. Neptune Tech. Group, Inc., N o . 2:08-cv-5-MEF, 2009 U.S. Dist. LEXIS 97213, at *37 (M.D. Ala. Oct. 20, 2009) (c itin g Jones, 874 F.2d at 1542). b . The Shack Incident H e re , Summers spends much of her Response arguing that she did nothing wrong w ith regards to the Shack incident. (Doc. # 39, at 4­11). However, a prima facie case of d is c rim in a tio n is not established when a plaintiff shows merely that she did not, in fact, v io la te a work rule that the employer found her to have violated. Miller-Goodwin, 2010 U .S . App. LEXIS 14038, at *12­14 n.2 ("[N]o plaintiff can make out a prima facie case b y showing just that she belongs to a protected class and that she did not violate her e m p lo ye r's work rule. The plaintiff must also point to someone similarly situated (but o u ts id e the protected class) who disputed a violation of the rule and who was, in fact, tre a te d better."). Instead, a plaintiff fired for misconduct must show "`that the m isc o n d u c t for which [he] was discharged was nearly identical to that engaged in by [an e m p lo ye e outside the protected class] whom [the employer] retained.'" Nix, 738 F.2d at 1 1 8 5 (citing Davin, 678 F.2d at 570). Summers claims that the "investigation [into the Shack incident] uncovered n u m e ro u s problems with [the City of Dothan's]