Carney v. City of Dothan (JOINT ASSIGN)(MAG+)

Filing 84

MEMORANDUM OPINION AND ORDER: it is ORDERED that Defendant's 43 motion for summary judgment is GRANTED. It is further ORDERED that Plaintiff's 67 motion to set aside order on motion for leave to file amended complaint is DENIED as moot. A separate final judgment will be entered. Signed by Chief Judge William Keith Watkins on 1/28/2016. (kh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
RAEMONICA CARNEY,
Plaintiff,
v.
CITY OF DOTHAN,
Defendant.

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CASE NO. 1:14-CV-392-WKW
[WO]

MEMORANDUM OPINION AND ORDER
Before the court is Defendant’s motion for summary judgment. (Doc. # 43.)
Plaintiff filed a response (Doc. # 68), and Defendant filed a reply (Doc. # 74).
Upon consideration of the parties’ arguments, the evidence, and the relevant law,
the motion is due to be granted.
I. JURISDICTION AND VENUE
Subject-matter jurisdiction is exercised pursuant to 28 U.S.C. § 1331, 42
U.S.C. § 1983, and 42 U.S.C. § 2000e, et seq. The parties do not contest personal
jurisdiction or venue.
II. STANDARD OF REVIEW
To succeed on a motion for summary judgment, the moving party must
demonstrate “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 evidence and the inferences from that evidence in the light
most favorable to the nonmoving party. Jean-Baptiste v. Gutierrez, 627 F.3d 816,
820 (11th Cir. 2010).
On a motion for summary judgment, the moving party “always bears the
initial responsibility of informing the district court of the basis for its motion.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This responsibility includes
identifying the portions of the record illustrating the absence of a genuine dispute
of material fact.

Id.

If the moving party does not bear the trial burden of

production, it may assert, without citing the record, that the nonmoving party
“cannot produce admissible evidence to support” a material fact. Fed. R. Civ. P.
56(c)(1)(B); see also Fed. R. Civ. P. 56 advisory committee’s note (“Subdivision
(c)(1)(B) recognizes that a party need not always point to specific record materials.
. . . [A] party who does not have the trial burden of production may rely on a
showing that a party who does have the trial burden cannot produce admissible
evidence to carry its burden as to the fact.”). If the moving party meets its burden,
the burden shifts to the nonmoving party to establish—with evidence beyond the
pleadings—that a genuine dispute of material fact exists as to each of its claims for
relief. Celotex, 477 U.S. at 324. A genuine dispute of material fact exists when
the nonmoving party produces evidence allowing a reasonable fact finder to return

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a verdict in its favor. Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279
(11th Cir. 2001).
III. BACKGROUND
This lawsuit arises from Plaintiff’s employment as a police officer in
Dothan, Alabama. She brought an action alleging employment discrimination,
violation of a consent decree, deprivation of First Amendment Rights, and
retaliatory hostile work environment. The specific facts and procedural history
will be discussed below.
A.

Facts
The facts are derived from the evidentiary submissions of the parties and are

viewed in the light most favorable to Carney.

The only evidence under

consideration is that which is admissible on its face or can be reduced to an
admissible form and complies with Rule 56(e) of the Federal Rules of Civil
Procedure. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986); Macuba v.
DeBoer, 193 F.3d 1316, 1322-24 (11th Cir. 1999). (See Doc. # 82.) The content
of the evidentiary submissions will only be addressed to the extent the party
offering the evidence makes specific reference to it in a brief. See Fed. R. Civ. P.
56(c). In addition, affidavit and declaration testimony will only be considered to
the extent that the averments contained therein are made on the basis of personal

3

knowledge and are matters on which the affiant is competent to testify. See Fed.
R. Civ. P. 56(c)(4).
Facts pertaining generally to the Dothan Police Department will be
addressed first.

Facts pertaining to Plaintiff’s employment will be addressed

second.
1.

Dothan Police Department

The Dothan Police Department (the “Department”) is a subdivision of the
City of Dothan, and the Dothan City Manager supervises the police chief. (Benton
Decl., Doc. # 44-6, at 3.) As employees of the Department, all police officers are
required to comply with the Department’s General Orders. (Benton Decl., Doc. #
44-6, at 3.) And as employees of the City of Dothan, all officers also must comply
with rules and regulations promulgated by the Dothan Personnel Board and with
general city policies. (Benton Decl., Doc. # 44-6, at 3.) Upon their hiring, all
officers receive an employee handbook, which contains the relevant rules,
regulations, and orders by which they are bound. (Benton Decl., Doc. # 44-6, at
3.) Any changes to these policies are posted to the City of Dothan’s internal
computer network. (Benton Decl., Doc. # 44-6, at 4.)
Specifically, officers are bound by the Department’s general orders
regarding use of social media. General Order 100-52 provides that employees
should not engage in speech that will “impair working relationships of [the]
4

[D]epartment for which loyalty and confidentiality are important, impede the
performance of duties, impair discipline and harmony among coworkers, or
negatively affect the public perception of the department.” (General Order 100-52,
Doc. # 44-6, at 13.)
General Order 100-50 prohibits “bringing discredit to . . . the Department,
the City of Dothan, or law enforcement in general.” (General Order 100-50, Doc.
# 44-6, at 17.) General Order 100-50 further provides that officers should refrain
from conduct that “adversely affects the morale or efficiency of the Department[,]
has an adverse effect on the employee’s job performance, or which has a tendency
to destroy public respect for employees and confidence in the Department.”
(General Order 100-50, Doc. # 44-6, at 18.)
In addition, the City of Dothan Personnel Rules and Regulations prohibit
“misconduct, contravention of criminal law, or any disgraceful conduct which
reflects unfavorably on the City as an employer or public entity.” (Personnel Rules
and Regs., Doc. # 44-6, at 46.) Those rules also list gross insubordination as an
“intolerable offense” for which termination is a mandatory consequence.
(Personnel Rules and Regs., Doc. # 44-6, at 49.)
The City of Dothan has previously dealt with issues of workplace
discrimination. In 1976, it entered a Consent Decree by which it agreed to refrain
from discriminating in employment. (Consent Decree, Doc. # 1-1, at 1-2.) It also
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agreed to implement an affirmative action plan with respect to its hiring decisions.
(Consent Decree, Doc. # 1-1, at 1-2.)
2.

Carney’s Employment

Plaintiff RaeMonica Carney (“Carney”), a black female, began working as a
police officer with the City of Dothan in June of 1999. (Carney Depo., Doc. # 441, at 16.) She worked within the Department as a police officer from 1999 to 2004,
when she moved to Arizona. (Carney Depo., Doc. # 44, at 17.) Carney returned to
Dothan in 2005, and the Department rehired her. (Carney Depo., Doc. # 44-1, at
18.) She continued her employment within the Department until her termination in
2013. (Benton Decl., Doc. # 44-6, at 8.)
a.

Assignments

The Chief of Police, as head of the Department, assigns officers to certain
roles. What constitutes a desirable assignment varies based on an individual’s
preferences, and the assignments do not affect officer pay, rank, or benefits.
(Carney Depo., Doc. # 44-1, at 144; Benton Decl., Doc. # 44-6, at 3.) Carney took
several assignments during her employment.
During her initial period of employment, Carney worked in the narcotics and
patrol divisions. (Carney Depo., Doc. # 44-1, at 16.) In April of 2008, the
Department assigned Carney, at her request, to a detail as school resource officer.
(McKay Decl., Doc. # 44-5, at 3.)
6

Carney took an assignment as coordinator of the Department’s community
watch program in November of 2010. (McKay Decl., Doc. # 44-5, at 4.) Gregory
Benton (“Benton”), who was the Department’s Chief of Police from 2010 to 2015,
selected Carney for this assignment. (Carney Depo., Doc. # 44-1, at 23-24.) In
that capacity, Carney met with and provided training for community members in
the Dothan area. (Carney Depo., Doc. # 44-1, at 23.) In April of 2011, Carney
requested an assignment to the crimes analysis and dissemination division of the
Department. (McKay Decl., Doc. # 44-5, at 8.) An officer with a higher rank who
was already working in that department received the assignment. (McKay Decl.,
Doc. # 44-5, at 8.) That same month, Benton instead assigned Carney to serve as
recruiting team member. (McKay Decl., Doc. # 44-5, at 3.)
In August of 2012, Benton moved Carney to an assignment within the crime
stoppers program. (McKay Decl., Doc. # 44-5, at 4.) This assignment required
extensive visibility within the community.

Carney participated in community

meetings, appeared on television, gave interviews for news media outlets, and
became generally well-known throughout Dothan. (Carney Depo., Doc. # 44-1, at
26.) As part of the crime stoppers program, the Department granted Carney access
to TipSoft, a web-based application that allowed the Department to receive crime
tips from community members. (EEOC Charge, Doc. # 44-11, at 2.)

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Benton sent a memorandum to all Department employees in November of
2012 notifying them of the opportunity to transfer to the criminal investigations
division, but Carney did not submit a request for this assignment. (McKay Decl.,
Doc. # 44-5, at 8–9.) In January of 2013, the Department again assigned Carney to
the role of school resource officer. (McKay Decl., Doc. # 44-5, at 4.)
b.

Training Opportunities

During her tenure at the Department, Carney took advantage of a number of
training opportunities. In all, she attended over 130 training courses. (McKay
Decl., Doc. # 44-5, at 9.) Specifically, the Department granted Carney’s request to
attend the “Every 15 Minutes Coordinators Training” program, providing her with
special funds for travel. (McKay Decl., Doc. # 44-5, at 9.)
c.

Promotions and Testing

Within the Department, individuals begin their employment as police
officers. Each officer then has the potential to advance to higher ranks. In order
from lowest to highest, the ranks include corporal, sergeant, lieutenant, captain,
and major. (Carney Depo., Doc. # 44-1, at 27.)
i.

Corporal

The Department required that candidates for the rank of corporal take a test,
and the Department considered their scores in determining which officers to
promote. (Carney Depo., Doc. # 44-1, at 129.) Carney first applied for promotion
8

to the rank of corporal in May of 2006. (Carney Depo., Doc. # 44-1, at 128.) The
personnel director at the time determined that Carney was ineligible for promotion
due to her initial probationary working status. (Carney Depo., Doc. # 44-1, at 128–
29.) In May of 2011, Carney applied again for a promotion to the rank of corporal.
(Carney Depo., Doc. # 44-1, at 129).

The Department promoted Carney to

corporal in September of 2011. (Carney Depo., Doc. # 44-1, at 128.)
ii.

Sergeant

Candidates for the rank of sergeant also underwent testing procedures.
(Benton Decl., Doc. # 44-6, at 6.) The Department ranked officers who were
eligible for the promotion, determining the order largely on the basis of their test
scores. (Carney Depo., Doc. # 44-1, at 139; Eligible Candidates List, Doc. # 44-5,
at 72.)

The Department then awarded promotions in order of this ranking.

(McKay Decl., Doc. # 44-5, at 7.) The scores and rankings remained valid for one
year. (Carney Depo., Doc. # 44-1, at 139.)
In August of 2013, the Department invited all officers to attend an
informational meeting regarding promotions. (Candidate Orientation Email, Doc.
# 44-5, at 46.) At the meeting, candidates received information about how the
exam would be administered and how to best prepare. (McKay Decl., Doc. # 44-5,
at 6.) Carney attended this meeting. (Attendance List, Doc. # 44-5, at 48.) Aside

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from providing information at this meeting, the Department did not facilitate
special training for candidates. (McKay Decl., Doc. # 44-5, at 7.)
Carney completed the testing procedure in August of 2013, ranking eighth
out of the seventeen candidates for sergeant. (Eligible Candidates List, Doc. # 445, at 72.) Carney believed that when she took the exam, the questions were listed
out of order on a flip chart, which affected her score. (Doc. # 69-2, at 5.)1 The
Department promoted officers in order of ranking, eventually elevating ten officers
to the rank of sergeant. (McKay Decl., Doc. # 44-5, at 7.) At the time of Carney’s
termination, the Department had not yet reached her name in the order of officers
eligible for promotion.

(Benton Decl., Doc. # 44-6, at 6.)

The Department

promoted at least one black officer from that list. (Carney Depo., Doc. # 44-1, at
139.)
iii.

Firearms Testing

The Department conducts periodic firearms testing, and all officers are
required to attain a minimum score of seventy on the test. (Firearms Score, Doc. #
44-5, at 42.) The results of the firearms test are also used to determine eligibility
for the Special Weapons and Tactics (“SWAT”) team and the Special Reaction
Team (“SRT”). (McKay Decl., Doc. # 44-5, at 6.) In March of 2013, Carney took
1

The parties dispute whether Carney complained about issues with the text. Carney
stated in her affidavit that she complained about the irregularity to Nichole Gibson, but that her
complaint prompted no investigation. (Carney Aff., Doc. # 69-2, at 5.) McKay stated, however,
that Gibson offered Carney an opportunity to review her results, and Carney failed to take
advantage of the opportunity. (McKay Decl., Doc. # 44-5, at 7.)
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the firearms test and received a score of ninety. (Firearms Score, Doc. # 44-5, at
42.) This score met the minimum required to be considered for SWAT or SRT.
(McKay Decl., Doc. # 44-5, at 6.)
After taking the March 2013 firearms test, Carney challenged the score she
initially received, arguing that she did not receive credit for all accurate shots.
(Carney Aff., Doc. # 69-2, at 2.) The white officer scoring her test gave her credit
for only some of the shots she felt she fired accurately. (Carney Aff., Doc # 69-2,
at 2.)

The process of scoring shots on such a test, however, is not wholly

objective, and requires some judgment in determining whether shots land within
the target or go through an existing hole. (Carney Depo., Doc. # 44-1, at 50.)
iv.

Ethics Testing

At some point during the early part of 2013, the Department required that
Carney take an ethics test. (Carney Depo., Doc. # 44-1, at 49.) She felt that she
did not receive credit for a question on the test that she answered correctly.
(Carney Depo., Doc. # 44-1, at 49.) She reported this issue to Chief Benton.
(Carney Depo., Doc. # 44-1, at 49.) She did not receive the score she believed she
earned, but still received a passing grade. (Carney Depo., Doc. # 44-1, at 49.)
c.

TipSoft Access

Though Carney initially had access to the TipSoft program as part of her
assignment to the crime stoppers program, the Department removed her access in
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November of 2012. (Benton Decl., Doc. # 44-6, at 5.) Benton made this decision
for administrative reasons. (Benton Decl., Doc. # 44-6, at 5.) The criminal
investigations department was able to respond more efficiently by assigning tips
directly to investigators, and Benton felt that transferring administrative access to
another officer within criminal investigations facilitated more effective use of the
program. (Benton Decl., Doc. # 44-6, at 5.) Lieutenant Benny, the officer who
received administrative access to TipSoft as a result of Benton’s decision, sent an
email to Carney notifying her of the change in access. (Benny Email, Doc. # 44-2,
at 220.)
d.

Facebook Comments

Carney maintained an active personal Facebook page. (2013 Personnel
Board Hearing, Doc. # 44-3, at 54.) When she posted to that page, the public could
view her comments. (2013 Personnel Board Hearing, Doc. # 44-3, at 54.) Carney
used this forum to comment on various topics, including the infamous saga of
police officer Christopher Dorner (“Dorner”). (2013 Personnel Board Hearing,
Doc. # 44-3, at 55.)
Dorner, an officer with the Los Angeles Police Department (“LAPD”),
killed several fellow officers and civilians. (See generally Dorner Manifesto, Doc.
# 44-8, at 26-49.) In an open letter he penned, which has come to be known as his
Manifesto, Dorner confessed to the killings and shed light on the motivations
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behind his sinister acts. (Dorner Manifesto, Doc. # 44-8.)

He spoke out against

his fellow officers for what he perceived to be a culture of racism and misuse of
police power within the LAPD. (Dorner Manifesto, Doc. # 44-8, at 28.) He felt
that the LAPD terminated him in retaliation for his actions, and that killing others
was the only effective response.

(Dorner Manifesto, Doc. # 44-8, at 30.)

Authorities eventually tracked Dorner, engaged in a shootout with him, and burned
the cabin where he was hiding. (Smith Decl., Doc. # 44-8, at 3.)
Carney made a series of Facebook posts regarding the Dorner fiasco. (Smith
Decl., Doc. # 44-8, at 2–3.) Fellow officers described these posts as sympathizing
with Dorner and supporting his action. (See, e.g., Officer’s Investigation Report,
Doc. # 44-8, at 55.) A review of the record reveals that Carney made the following
Facebook posts regarding the Dorner incident:
When a person is pushed to the point where they begin to destroy
EVERYTHING that once was held in the HIGHEST ESTEEM and
EVERYONE who should have stood for what was RIGHT, the one
thing they were ready to give up is the only thing they feel taking out
will be the solution to restoring the name, respect, and honor that he
was revered for: HUMAN LIFE!!!
We never know what values a person truly has until they stand up,
stand firm, and fight for them!!! Like if you will stand up, stand firm,
and fight for the values you have….I WILL!!!!
CNN is playing the audio from the shoot out allegedly [between]
Christopher Dorner and San Bernardino Officers….sounds like
several hundreds of rounds being fired and none from a semiautomatic
weapon….one man can only fire a maximum of two handguns at one
time which would equate to roughly 30 rounds with no magazine
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exchanges (hard to do with both hands holding guns)…AND the fire
was set from outside the cabin not inside the cabin….I’m NOT
SURPRISED!!! Does this not sound like slavery times when mobs
would burn blacks just because….
Did law enforcement burn Barker Ranch where Charles Mansen [sic]
and his followers lay after killing so many people that the true count is
still not known…NO!!! Instead he and his band of murderers are still
sitting in jail being fed by taxpayer dollars…..but ONE MAN who
stands for JUSTICE is, if you believe the news story, burned to
charred remains by a group of what are supposed to be enforcers of
the law and protectors of life but in my opinion are no more than
VIGILANTES WITH A BADGE AND GUN!!!
NOT MY
BROTHERS IN LAW ENFORCEMENT.
[Facebook] form your own opinion about Christopher Dorner after
you read his manifesto at the link below. ‘For what shall profit a man,
if he shall gain the whole world, and lose his own soul?’ (Mark 8:3637 KJV). (linking to the Dorner Manifesto)
Christopher Dorner said in his manifesto that no other deaths would
occur if those people whom he mentioned in it would simply TELL
THE TRUTH which would clear his name… Instead they continued
to make matters worse by vilifying a man whose morals, ethics, and
integrity were beyond reproach and unquestionable.
In order to clearly understand the position this man was pushed into
you would have had to have walked in his shoes and experienced the
things he experienced or in the very least experienced something very
similar to what he was blowing the whistle on. I HAVE!!! Have
you?
I understand how you feel….Sometimes the hardest lessons in life are
learned [through] death.
You see I think that’s where people have misjudged [Dorner’s]
actions and intentions by referring to them as revenge…it was his way
of getting justice for the injustices that he and others suffered at the
hands of those people. JUSTICES FOR THE INJUSTICES!
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(Carney Facebook, Doc. # 44-8 at 7–25.) Before the Department engaged in any
formal investigation of the postings, Major Steve Parrish spoke with Carney about
her social media activity. (Carney Depo., Doc. # 44-1, at 60–62.) He reminded
Carney of the personnel rules, and she responded that she appreciated his concern.
(Carney Depo., Doc. # 44-1, at 62.)
Benton became aware of Carney’s postings when he reviewed Wiregrass
Live, a local online discussion forum. (Benton Decl., Doc. # 44-6, at 6.) He
noticed that Emily Hays, a Dothan citizen, complained about Carney’s Facebook
posts. (Benton Decl., Doc. # 44-6, at 6.) He instructed Sergeants Smith and
Magill to investigate the Facebook comments. (Benton Decl., Doc. # 44-6, at 6.)
Equal Employment Opportunity (“EEO”) Officer Daryl Mathews (“Mathews”)
also conducted an investigation. (Benton Decl., Doc. # 44-6, at 6.) During the
course of the investigation, the Department received seventeen complaints from
other officers, many of whom expressed their feeling that, based on Carney’s
comments, they were uncomfortable with her being called to back them up in a
dangerous situation. (Smith Decl., Doc. # 44-8, at 3.) The investigators found that
there was no doubt Carney condoned Dorner’s actions. (Internal Investigation
Report, Doc. # 44-8, at 79.)
After reviewing the investigatory findings, Benton determined that Carney
was in violation of General Order 100-52 and Section 3-42(13) of the City of
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Dothan Personnel Rules and Regulations. (Benton Decl., Doc. # 44-6, at 6.)
Benton disciplined Carney by suspending her for a period of ten days, removing
her from the details to which she was assigned at that time, and relegating her to
front desk duty. (Benton Decl., Doc. # 44-6, at 7.)
Carney appealed Benton’s disciplinary decision to the City of Dothan
Personnel Board, which included both white and black members. (McKay Decl.,
Doc. # 44-5, at 4.) At the hearing, Carney testified that she felt she would be
justified in shooting a co-worker or a co-worker’s family members if the co-worker
wronged her. (2013 Personnel Board Hearing, Doc. # 44-2, at 69.) Based on this
statement, the Department required that Carney undergo a psychological
evaluation to determine whether she was fit for duty. (Benton Decl., Doc. # 44-6,
at 7.)
Carney also testified at the hearing that other officers within the Department
made offensive comments on social media. (Smith Decl., Doc. # 44-8, at 4.) The
Department investigated these other posts and determined that none of them
violated Department policy.2 (Smith Decl., Doc. # 44-8, at 4.) After hearing all
the evidence, the Personnel Board upheld Benton’s disciplinary action. (McKay
Decl., Doc. # 44-5, at 4.) Carney appealed the Personnel Board’s decision to the
2

In 2014, the Department disciplined two other officers for making inappropriate
comments on Facebook. One was a white female, and the other was a black male. (McKay
Decl., Doc. # 44-5, at 13.)
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Houston County Circuit Court, which also upheld Benton’s disciplinary action.
(McKay Decl., Doc. # 44-5, at 5.)
e.

EEOC Charge and Other Complaints

Carney eventually decided to file an official complaint alleging
discriminatory practices within the Department. On February 15, 2013, Carney
emailed Delvick McKay (“McKay”), the current Personnel Director for the City of
Dothan, informing him of her intention to file an EEO complaint. (McKay Decl.,
Doc. # 44-5, at 5.) McKay forwarded this correspondence to Benton and began
gathering relevant information.

(McKay Decl., Doc. # 44-5, at 5.)

Carney

submitted her formal complaint to Mathews, the EEO Officer, on February 26,
2013.3 (Mathews Decl., Doc. # 44-7, at 3.) On February 27, 2013, McKay met
with Carney to discuss her complaint. (McKay Decl., Doc. # 44-5, at 5.) McKay
responded to each of Carney’s concerns in writing. (McKay Decl., Doc. # 44-5, at
5.)
On April 26, 2013, Carney filed a Charge with the Equal Employment
Opportunity Commission (“EEOC”). (EEOC Charge, Doc. # 44-11.) Carney

3

Carney contends that the testimony of Mathews and McKay is incredible. (Doc. # 68,
at 10.) On a motion for summary judgment, the court does not weigh the evidence or make
determinations as to credibility. Lane v. Celotex Corp., 782 F.2d 1526, 1528 (11th Cir. 1986). It
merely peruses the evidentiary submissions to determine whether there is a genuine dispute of
material fact. Carney has not submitted evidence rebutting the testimony of Mathews or McKay.
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amended her EEOC charge on December 17, 2013, to add retaliation.4 (Carney
Aff., Doc. # 69-2, at 1.) The EEOC issued a dismissal notice of rights on February
19, 2014. (Doc. # 1-2.) The City of Dothan never received an amended charge
from the EEOC. (McKay Decl., Doc. # 44-5, at 8.)
f.

Office Relocation

In February of 2013, the Department relocated its community services
division. (Benton Decl., Doc. # 44-6, at 5.) The new location was closer to a
recreation center, and the Department felt the move would help it attain a stronger
presence in the community. (Benton Decl., Doc. # 44-6, at 5.) The Department
sent Carney, as community watch coordinator, and Lieutenant Benny Baxley
(“Baxley”) to the new location. (Benton Decl., Doc. # 44-6, at 5.) Baxley was not
under Department investigation for any misconduct. (Benton Decl., Doc. # 44-6,
at 5.) Any tasks Carney performed in the new location were part of the effort to
improve the Department’s community presence. (Benton Decl., Doc. # 44-6, at 5.)
g.

Domestic Dispute

In December of 2013, Carney and her then-fiancé, Kenneth Cloyd
(“Cloyd”),5 engaged in a verbal dispute while riding in Carney’s personal vehicle.
(Carney Depo., Doc. # 44-1, at 110.) Cloyd eventually exited the vehicle and
4

At some point during her employment, Carney filed a complaint against a fellow officer,
alleging excessive force. (Carney Aff., Doc. # 69-2, at 9.) She witnessed the officer punching a
disabled man while effecting an arrest. (Carney Aff. Doc. # 69-2, at 9.)
5

Carney and Cloyd are now married. (Carney Depo., Doc. # 44-1, at 5.)
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began walking toward Carney’s home in Dothan, where he had left his own
vehicle. (Carney Depo., Doc. # 44-1, at 111.) While back at her home, Carney
parked her personal vehicle and moved her Department patrol car so that it blocked
Cloyd’s vehicle. (Carney Depo., Doc. # 44-1, at 114.) Cloyd returned to Carney’s
home on foot and attempted to move his blocked vehicle. (Carney Depo., Doc. #
44-1, at 115.)
Because he was unable to move his vehicle, Cloyd contacted the Department
for assistance. (Carney Depo., Doc. # 44-1, at 115.) When officers arrived at
Carney’s home, they instructed Carney to move her patrol vehicle. (Carney Depo.,
Doc. # 44-1, at 116.) Carney refused. (Carney Depo., Doc. # 44-1, at 116.)
Carney eventually went through the Department dispatcher and requested to speak
with Major Steve Parrish. (Carney Depo., Doc. # 44-1, at 116.) Major Steve
Parrish instructed Carney to follow the instructions of the officers at her home,
making it clear that he intended this as an order from police superior to police
subordinate. (Carney Depo., Doc. # 44-1, at 118.) Carney eventually allowed the
officers on the scene to move her patrol car, but she did not allow them to move
Cloyd’s vehicle. (Carney Depo., Doc. # 44-1, at 118–19.) This was in spite of the
fact that the officers on the scene and Major Steve Parrish had repeatedly
instructed her to do so. (Carney Depo., Doc. # 44-1, at 118–19.)

19

In light of this incident, the Department initiated an internal investigation.
(Smith Decl., Doc. # 44-8, at 4.) The Department placed Carney on administrative
leave pending the outcome of the investigation. (Benton Decl., Doc. # 44-6, at 8.)
Carney signed a Garrity notice and answered investigators’ questions regarding the
incident. (Smith Decl., Doc. # 44-8, at 4.) The Department held a Notice of
Termination hearing at which Carney presented evidence. (Carney Depo., Doc. #
44-1, at 124–25.) After the investigation and hearing, the Department terminated
Carney’s employment for gross insubordination. (Benton Decl., Doc. # 44-6, at 8.)
Carney appealed the termination to the City of Dothan Personnel Board,
which upheld the decision. (McKay Decl., Doc. # 44-5, at 8.) She did not appeal
the Personnel Board’s decision to the Houston County Circuit Court. (McKay
Decl., Doc. # 44-5, at 8.)
B.

Procedural History
Carney initiated this action when she filed a complaint on May 23, 2013.

(Doc. # 1.) The City of Dothan filed this motion for summary judgment on July
17, 2015. (Doc. # 43.) Before responding to the motion, Carney sought leave to
amend her complaint. (Doc. # 58.) That motion was denied. (Doc. # 62.) Carney
filed a motion to set aside the order denying leave to amend the complaint (Doc. #
67), but that motion will be denied. Carney responded to the motion for summary
judgment on September 25, 2015. (Doc. # 68.) Before filing a reply, the City of
20

Dothan filed four separate motions to strike evidence submitted by Plaintiff (Docs.
# 70, 71, 72, and 73). Those motions were denied. (Doc. # 82.) The City of
Dothan replied on October 2, 2015. (Doc. # 74.)
IV. DISCUSSION
In the motion now pending before the court (Doc. # 43), Defendant seeks
summary judgment as to all counts.

Count I alleges race and gender 6

discrimination under Title VII of the Civil Rights Act (“Title VII”). Count II
alleges violations of a consent decree to which Defendant is a party. Count III
asserts a claim for deprivation of Plaintiff’s First Amendment rights under 42
U.S.C. § 1983. Count IV claims Defendant subjected Plaintiff to a retaliatory
hostile work environment in violation of Title VII.
A.

Race and Gender Discrimination under Title VII (Count I)
Carney contends that the City of Dothan’s actions constitute discrimination

on the basis of race and gender in violation of Title VII. The first issue to be
addressed is the relevant time period under consideration and the events that may
form the basis of liability. The merits of Carney’s claims of race and gender
discrimination will then be discussed separately.

6

Title VII prohibits discrimination “because of . . . sex.” 42 U.S.C. § 2000e-2. For
purposes of this opinion, and because Carney styles Count I as a claim for “gender
discrimination,” the terms “sex” and “gender” will be used interchangeably.
21

1.

Timeliness Issues

Title VII imposes procedural limitations on the actions that may form the
basis of liability in an employment discrimination action. Under § 706 of the
statute, a claimant must file an EEOC charge within 180 days of an allegedly
unlawful employment practice. 42 U.S.C. § 2000e-5(e)(1).7 For purposes of this
Count I, which alleges discrete acts of race and gender discrimination, only those
practices that occurred within 180 days before the operative EEOC charge may be
considered in determining the employer’s liability. See Nat’l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 103 (2002). A charge is considered filed upon the date
of the EEOC’s receipt thereof. 29 C.F.R. § 1601.13(a)(1).
There are two filings at issue in this case.8 The EEOC received Carney’s
initial charge on April 26, 2013. Accordingly, discrete acts occurring between
October 12, 2012, and April 26, 2013, may be considered. Included within this
period are alleged discriminatory actions relating to Carney’s opportunities for
promotions, work assignments within the Department, training opportunities, the
7

The allegedly unlawful employment practices at issue in this case occurred in the state
of Alabama, which is a non-deferral state. Accordingly, the 180-day period applies. See
Ledbetter v. Goodyear Tire & Rubber Co., 421 F.3d 1169, 1178 (11th Cir. 2005).
8

Carney filed EEOC charges in 2006 and 2009. (Carney Decl., Doc. # 69-2, at 1.) She
disputes the City of Dothan’s contention that these charges are irrelevant to the instant suit.
(Carney Decl., Doc. # 69-2, at 1.) To the extent that these past charges allege discrete acts of
discrimination, those discrete acts are time-barred and may not be considered in relation to the
instant Title VII claims. See 42 U.S.C. § 2000e-5(1); Morgan, 536 U.S. at 103. To the extent
that they may be relevant to a claim for hostile work environment, those timeliness issues will be
addressed separately in Part IV.D, infra.
22

Department’s testing procedures, Carney’s access to the TipSoft program, access
to paid leave, and the Department’s disciplinary action in response to Carney’s
Facebook comments. Concerns regarding untimely employment actions will be
addressed throughout Part A.2, infra.
The other filing at issue in this case is a purported amended charge of
discrimination, which Carney signed on December 17, 2013. (Amended Charge,
Doc. # 69-5, at 2.) This amended charge, if properly filed, would encompass the
events surrounding Carney’s termination, which occurred after her April 26, 2013
charge. If Carney failed to properly file this amended charge, these additional
events may not be considered in connection with this claim of Title VII liability.
See 42 U.S.C. § 2000e-5(a)(1); Morgan, 536 U.S. at 103.
It is clear from the undisputed evidence that Carney prepared and verified
this amended charge, but the evidence does not establish whether she ever filed it
with the EEOC. Carney admitted that she is unaware whether her counsel ever
submitted this amended form (Carney Depo., Doc. # 44-1, at 151), and the City of
Dothan has presented evidence indicating that it did not receive an amended
charge. (McKay Decl., Doc. # 44-5, at 8.) Because the circumstances surrounding
Carney’s termination ultimately do not give rise to liability under Title VII, the
issue of their consideration under § 706 of the statute need not be decided. This
issue will be addressed in greater detail in Part IV.A.2.i, infra.
23

2.

Race Discrimination

Carney first alleges discrimination on the basis of race in violation of Title
VII. Where, as here, a claimant attempts to prove intentional discrimination by
circumstantial evidence, the claims are analyzed under the framework set out in
McDonnell Douglas Corp. v. Green. 411 U.S. 792 (1973). Under McDonnell
Douglas, the claimant bears the initial burden of establishing a prima facie case of
discrimination. Id. at 802. The burden of production then shifts to the employer to
articulate a legitimate, non-discriminatory reason for its actions.

Id.

If the

employer provides a sufficient reason, the claimant again bears the burden of
showing that the offered reason was merely pretext for unlawful discrimination.
Id. at 804.
The elements of a prima facie case are dynamic, necessarily changing with
the nature of the underlying factual scenarios. Id. at 802 n.13. With respect to
Carney’s claim, there are several categories of employment actions at issue, each
of which will be discussed in turn. They include (a) failure to promote, (b) work
assignments, (c) training opportunities, (d) work environment, (e) testing,
(f) access to TipSoft, (g) paid leave, (h) Facebook discipline, and (i) termination.
a.

Failure to Promote

With respect to issues of promotion, Carney alleges that the Department
“promoted white officers with less seniority and experience at a faster rate than
24

[her].”

(Complaint, Doc. # 1, at 10.)

During her employment with the

Department, Carney was eligible for promotions to the ranks of corporal and
sergeant. As it relates to Carney’s claim of racially discriminatory failure to
promote, the City of Dothan’s motion for summary judgment is due to be granted.
i.

Promotion to Corporal

Carney’s claims relating to her promotion to the rank of corporal are
untimely. The Department promoted her to that rank in September of 2011, well
before the relevant time period began on October 12, 2012. Any purportedly
discriminatory actions relating to Carney’s promotion to corporal occurred outside
the relevant time period for this litigation, and therefore are not actionable.
ii.

Failure to Promote to Sergeant

Though Carney did receive a promotion to the rank of corporal, she never
achieved the rank of sergeant. The City of Dothan does not dispute that Carney
successfully presents a prima facie case of discrimination for this employment
action. Instead, the City of Dothan contends that it has offered a legitimate,
nondiscriminatory reason for its decision, and that Carney has failed to offer
evidence establishing that the reason was pretext for discrimination.
The City of Dothan’s arguments are well taken. The undisputed evidence
establishes that the Department promoted candidates in order of ranking, based
largely on their sergeant’s exam scores. Carney ranked eighth out of seventeen
25

eligible candidates. Though her ranking and eligibility endured for a year, the
Department terminated her for other reasons before it reached her in the order. The
Department eventually promoted ten officers from the list, including at least one
black officer.

The Department’s testing and ranking procedure constitutes a

legitimate, nondiscriminatory reason for its failure to promote Carney.
In her affidavit, Carney contends that when she took the sergeant’s exam,
she was “subjected to an improper set-up of the flip chart,” which affected her
score. (Doc. # 69-2, at 5.) Carney makes no mention of this fact in her brief in
opposition to the motion for summary judgment, but the City of Dothan does
address it in its own briefing. Though the court is under no duty to address
portions of the record upon which the parties do not rely, 9 this alleged testing issue
will be briefly addressed.
Carney’s testimony regarding the sergeant’s exam, ultimately, is insufficient
to allow a finder of fact to conclude that the City of Dothan’s legitimate,
nondiscriminatory reason was mere pretext for racial discrimination. There is an
issue of fact with respect to whether Carney experienced testing irregularities, but
this dispute is not material. Waddell, 276 F.3d at 1279 (holding that a genuine
9

The onus is on the parties to formulate arguments based on the evidence submitted in
connection with a motion for summary judgment. Resolution Trust Corp. v. Dunmar Corp., 43
F.3d 587, 599 (11th Cir. 1995). The court need not “distill every potential argument that could
be made based on the materials before it on summary judgment . . . . [G]rounds alleged in the
complaint but not relied upon in summary judgment are deemed abandoned.” Id. (citation
omitted). This is a portion of the record to which the City of Dothan makes reference, so it will
be addressed.
26

dispute of material fact exists when the nonmoving party produces evidence
allowing a reasonable fact finder to return a verdict in its favor). The material
element, which Carney must prove, is that the Department engaged in intentional
racial discrimination.

The undisputed evidence does show that another black

officer, Maurice Eggleston, ranked third out of seventeen candidates for the rank of
sergeant. The Department promoted him to the rank of sergeant based on his high
order on the list of eligible candidates.

Carney is unable to identify any

preferential treatment given to white officers who ranked higher than her on the
eligible candidates list.
The evidence, drawing all inferences in the light most favorable to Carney,
only allows for the rational conclusion that the Department failed to promote
Carney for a nondiscriminatory reason.10

See Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 148 (2000) (“Certainly there will be instances where,
although the plaintiff has established a prima facie case and set forth sufficient
evidence to reject the defendant’s explanation, no rational factfinder could
conclude that the action was discriminatory.”).

When the employer offers

evidence of a legitimate, nondiscriminatory reason, the plaintiff’s burden of
10

Though Carney has come forward with evidence of purported racial issues affecting
other City of Dothan employees, none of this evidence comes to bear on the events pertaining to
Carney’s opportunities for advancement within the Department. (See Davis Aff., Doc. # 69-6,
Gray Depo., Doc. # 69-5.) Carney has failed to show how this “me-too” evidence is relevant to
her own experience or claims. See Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 388
(2008).
27

showing pretext “merges with the ultimate burden of persuading the court that she
has been a victim of intentional discrimination.” Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981). On a motion for summary judgment arising in
this posture, where the nonmoving party bears the ultimate burden of persuasion,
the moving party may prevail by showing that the nonmoving party cannot
produce evidence sufficient to establish a material element of the claim. See Fed.
R. Civ. P. 56(c) (advisory committee note to 2010 amendment).
Here, it is clear that Carney bears the ultimate burden of persuading the
court that she is a victim of intentional racial discrimination. Burdine, 450 U.S. at
256.

Though Carney has come forward with evidence suggesting that she

experienced testing irregularities, she has not come forward with any evidence
suggesting that the test administration, the score she received, or her ranking
among eligible officers resulted from intentional racial discrimination. Because
she has failed to come forward with this evidence, she has failed to carry her
burden, even as a nonmoving party, on this motion for summary judgment. Fed R.
Civ. P. 56(c).
Ultimately, the City of Dothan failed to promote Carney because it had
reason to terminate her before it reached her name in the list of eligible candidates.
Because she has failed to introduce any relevant evidence from which a finder of
fact could reasonably conclude that the City of Dothan’s promotional decision
28

constituted racial discrimination, Carney has failed to establish the existence of a
genuine dispute of material fact on this issue. The motion for summary judgment
will be granted as to this aspect of Carney’s claims.
b.

Work Assignments

Carney also alleges that the City of Dothan determined her work
assignments in a discriminatory manner. (Doc. # 1, at 10.) Specifically, she
alleges that the City of Dothan offered preferential assignments to white officers,
removed Carney from her assignment duties and reassigned them to a white
officer, denied Carney’s requests for assignments within the Investigative Division
and the Hostile Negotiation Team, and stripped her of her duties as community
watch coordinator, crime stoppers coordinator, and recruiting team member. (Doc.
# 1, at 4, 6–7, and 10.)
Under the burden-shifting framework set out in McDonnell Douglas, Carney
must first establish a prima facie case of discrimination with respect to her work
assignments. 411 U.S. at 802. Though the precise contours of the prima facie case
depend on the nature of the employment action being challenged, every claimant
must show, at a minimum, that she suffered an “adverse employment action.”
Davis v. Town Lake Park, 245 F.3d 1232, 1238 (11th Cir. 2001). To rise to an
actionable level under Title VII’s anti-discrimination clause, the employment
action must result in a “serious and material change in the terms, conditions, and
29

privileges of employment.” Id. at 1239. Whether the action is sufficiently material
or serious is an objective inquiry, and does not depend on the employee’s
subjective interpretation of the events. Id. For purposes of this summary judgment
motion, Carney must offer evidence establishing a genuine dispute of material fact
with respect to whether she suffered an adverse employment action as a result of
her work assignments within the department.
Changes in work assignments generally are not actionable under Title VII.
Id. at 1245. Delegation of tasks and allocation of human resources are activities
that fall uniquely within the judgment and expertise of the employer. Id. at 1244.
Where the employer is a public entity, such as a police department, these concerns
are equally relevant.

Id.

And mere changes in work-related duties, where

unaccompanied by changes in compensation or other tangible conditions of
employment, generally are not material under the meaning of the statute. See id. at
1245.
In this case, it is undisputed that work assignments within the Department do
not affect directly officer pay, rank, or benefits. The evidence also establishes that
what constitutes a desirable assignment is subjective, depending on the preferences
of the individual officer.

To the extent Carney claims that the Department

discriminated in determining her work assignments, these events do not constitute
adverse employment actions.
30

Even assuming, without deciding, that the Department’s removal of Carney
from her roles within the community watch and crime stoppers programs was
sufficiently material to constitute an adverse employment action, the City of
Dothan offers a legitimate, nondiscriminatory reason for making this change. As
discussed in Part IV.A.2.h., infra, the Department took this action based on
Carney’s violation of an established social media policy, and Carney has failed to
offer sufficient evidence of pretext to carry her burden under the McDonnell
Douglas framework. As it relates to Carney’s allegations of racial discrimination
in work assignments, Defendant’s motion for summary judgment will be granted.
c.

Training Opportunities

As to training opportunities within the Department, Carney alleges that the
City of Dothan offered better opportunities to white officers. (Doc. # 1, at 10.) To
establish a prima facie case of discrimination based on denial of training
opportunities, Carney must show that she suffered an adverse employment action
in connection therewith. To show that denial of a training opportunity constitutes
an adverse employment action, the claimant must establish that the training
opportunity itself was material. Johnson v. Gestamp Ala., LLC, 946 F. Supp. 2d
1180, 1202 (11th Cir. 2013) (citing Turlington v. Atlanta Gas & Light Co., 135
F.3d 1428, 1435 n.16 (11th Cir. 1998)).

31

In support of this motion for summary judgment, the City of Dothan has
come forward with evidence establishing that the Department did not deny Carney
of any material training opportunities.

In response, Carney has submitted no

evidence indicating that the Department denied her any training opportunities. For
purposes of the instant motion, Carney has failed to establish the existence of a
genuine dispute of material fact as to this issue. Accordingly, as it relates to
Carney’s claims of discrimination based on denial of training opportunities, the
motion for summary judgment is due to be granted.
d.

Work Environment

Included in Count I is Carney’s allegation that the City of Dothan “offered
white officers a better work environment.” (Doc. # 1, at 10.) Carney does not
address this aspect of her claim in response to the motion for summary judgment.
This “work environment” allegation, inasmuch as it relates to Count I, is deemed
abandoned. See Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322 (11th Cir.
2001).

Issues relating to Carney’s hostile work environment claim will be

addressed in Part IV.D, infra.
e.

Testing

As to issues involving the Department’s testing procedures, Carney alleges
that white officers received “preferential treatment.” ( Doc. # 1, at 10.) The tests
at issue include an ethics test, a firearms test, and the sergeant’s exam.
32

i.

Ethics Test

The alleged scoring error the Department made in grading Carney’s ethics
test does not constitute an adverse employment action. Carney took the ethics test
in question in early 2013. Though she took issue with the way the Department
graded her responses, she ultimately received a passing score on this test. The
evidence establishes that this alleged error in scoring had no tangible effect on
Carney’s employment. See Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1261
(11th Cir. 2001). Accordingly, it cannot form the basis of Title VII liability.
ii.

Firearms Test

Any issues with the firearms test likewise do not constitute adverse
employment actions.

Carney took the firearms test in March of 2013.

She

challenged the score she received, but alleges that the scoring officer did not give
her credit for all accurate shots. She received a score of ninety on the exam. Not
only did this constitute a passing score, but it also met the minimum requirements
to be considered for SWAT or SRT. Carney also admitted that she was not
seeking a position on SWAT or SRT. These alleged errors did not result in any
“tangible, negative effect” on Carney’s employment. Lucas, 257 F.3d at 1261.
iii.

Sergeant’s Exam

With respect to the sergeant’s exam, Carney alleges irregularities in
administration of the oral portion of her test. As discussed in Part IV.A.2.a.ii,
33

supra, Carney has not come forward with evidence establishing that the alleged
testing irregularities resulted from intentional racial discrimination. The evidence
only allows the conclusion, drawing inferences in the light most favorable to
Carney, that any alleged testing irregularities occurred for nondiscriminatory
reasons. Accordingly, the motion for summary judgment is due to be granted with
respect to all issues of testing.
f.

TipSoft Access

As part of Count I, Carney also alleges that the Department engaged in racial
discrimination by restricting her access to “computer programs given to white
officers that better enabled them to perform their duties.” (Doc. # 1, at 10.) The
computer program at issue is TipSoft, which allows the Department to receive and
act upon tips from community members in conjunction with the crime stoppers
program. The evidence establishes that the Department, through Chief Benton,
changed administrative access to the program because he determined that the
change would allow for more efficient administration of the program.

This

constitutes a legitimate, nondiscriminatory reason for rescinding Carney’s
administrative access. Carney has not come forward with evidence suggesting this
reason was pretext for unlawful discrimination. McDonnell Douglas, 411 U.S. at
802–04. Defendant is entitled to summary judgment as to this aspect of Carney’s
claim.
34

g.

Paid Leave

Carney also alleges, in Count 1 of the complaint, that the City of Dothan
“credited white officers with more paid leave time” than her. (Doc. # 1, at 10.) In
support of this motion for summary judgment, the City of Dothan has offered
Carney’s deposition testimony, in which she admitted that she cannot identify any
officers who received more paid leave. (See Carney Depo., Doc. # 44-1, at 32.)
Carney offers no evidence to support her claim on this issue of paid leave.
Without any evidence supporting this claim, Carney cannot make out a prima facie
case of discrimination. McDonnell Douglas, 411 U.S. at 802. There is no genuine
dispute of material fact with respect to paid leave, and the City of Dothan is
entitled to judgment as a matter of law on this portion of Count I. Summary
judgment, therefore, will be entered in favor of Defendant as to the issue of paid
leave
h.

Facebook Discipline

Carney further alleges that the Department engaged in racial discrimination
when it suspended her without pay and placed her on probation for violations of its
social media policy. (Doc. # 1, at 10–11.) According to Carney’s allegations, the
Department failed to discipline white officers who committed similar or worse
offenses. (Doc. # 1, at 11.) Because Carney cannot make out a prima facie case of
discrimination, and because the Department has offered an unrebutted legitimate,
35

nondiscriminatory reason for disciplining Carney, the City of Dothan is entitled to
summary judgment on this aspect of Carney’s claim.
First, Carney has failed to make out a prima facie case of discrimination.
Specifically, she has not shown that the Department treated similarly situated white
officers more favorably. See Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d
1313, 1316 (11th Cir. 2003).

The Department suspended Carney because it

determined that her Facebook comments, which it determined to be supportive of
Dorner’s murderous actions, violated its social media policies. Carney complained
that other officers posted on social media in violation of the policy, but the
Department investigated those other comments and determined that they were not
violative of city policy. These officers cannot be considered similarly situated
because their posts were not objectionable in the way Carney’s posts were. The
undisputed evidence establishes that the Department did in fact discipline other
officers, both black and white, for posts that did violate its policies.
Second, assuming arguendo that Carney establishes a prima facie case, the
City of Dothan is entitled to summary judgment based on its legitimate,
nondiscriminatory reason for disciplining Carney. As will be discussed in more
detail in Part IV.B, infra, the Department determined, after a full investigation, that
Carney’s Facebook commentary ran afoul of its established policies.

This is

sufficient to constitute a legitimate, nondiscriminatory reason under the McDonnell
36

Douglas framework. 411 U.S. at 802–04. Carney has offered no evidence that this
reason was pretextual. Because Carney cannot make out a prima facie case of
discrimination, and because the Department took action for a legitimate,
nondiscriminatory reason, Defendant’s motion is due to be granted as to this issue.
i.

Termination

Carney further contends that the City of Dothan engaged in racial
discrimination when it terminated her for gross insubordination. (Doc. # 1, at 11.)
She alleges that white officers engaged in similarly objectionable conduct, but
were not terminated. (Doc. # 1, at 11.) Ultimately, these contentions are without
merit, and the motion for summary judgment is due to be granted. Issues of
timeliness will be addressed first. Then the merits of her claims will be discussed.
Carney’s initial charge of discrimination, which the EEOC received on April
26, allows her to bring this action with respect to discrete acts occurring between
October 12, 2012, and April 26, 2013. The Department terminated Carney on
December 17, 2013, long after she filed her initial charge. Because this event did
not occur within the period encompassed by the April 26, 2013 charge, Title VII’s
procedural bar requires that she file a new charge covering her termination. See 42
U.S.C. § 2000e-5(e)(1).
Carney submitted an amended charge, but it does not bear the EEOC’s
imprimatur of receipt.

The City of Dothan avers that it never received the
37

amended charge, and Defendant’s counsel represents that she could not secure a
copy in response to a Freedom of Information Act Request. (Doc. # 43, at 81.) It
is unclear whether Carney in fact filed the amended charge such that she exhausted
her administrative remedies under Title VII. Because Defendant is entitled to
summary judgment for other reasons, this issue need not be resolved.
Even if it is assumed without deciding that Carney exhausted her
administrative remedies with respect to issues of termination, summary judgment
is appropriate on this issue for two reasons. First, Carney cannot make out a prima
facie case of discrimination. Second, she cannot establish that the City of Dothan’s
legitimate, nondiscriminatory reason was pretext for discrimination.
To make out a prima facie case of discrimination, Carney must show that the
Department treated similarly situated employees of other races more favorably
than her. Knight, 330 F.3d at 1316. To constitute a similarly situated employee,
the comparator must be similar to the plaintiff in all respects. Holifield v. Reno,
115 F.3d 1555, 1562 (11th Cir. 1997). This includes being involved in or accused
of similar misconduct. Id. Here, Carney has produced no evidence tending to
show that another Dothan officer engaged in the sort of misconduct for which the
Department terminated her. It is undisputed that Carney repeatedly disobeyed
orders from a superior officer, which, in the Department’s view, constitutes gross

38

insubordination. Carney has offered no evidence establishing that an officer of
another race received more favorable treatment in response to insubordination.
Carney also has brought forth no evidence indicating that the City of
Dothan’s legitimate, nondiscriminatory reason for terminating her was pretext for
discrimination. The Department has established that, pursuant to established city
policy, termination is a mandatory consequence of gross insubordination. It has
also established that Carney refused to obey the orders of a superior officer during
a domestic dispute at her home. Carney has offered no evidence to establish a
genuine dispute of material fact, and has not offered any evidence establishing that
this reason was pretextual.

As to Carney’s claim for discrimination in her

termination, the City of Dothan is entitled to summary judgment.
j.

Failure to Investigate

Carney’s final allegation under Count I relates to the Department’s response
to her internal complaints. She alleges that when she heard racist jokes and slurs in
the workplace, she complained to management. (Doc. # 1, at 8.) According to
Carney, the City of Dothan failed to investigate these complaints.
In response to these allegations, the City of Dothan presents evidence
establishing that these contentions are without merit. When Carney complained to
Benton and McKay about perceived mistreatment, the Department took prompt
action.

McKay and Mathews investigated and responded to each of her
39

allegations. Carney has not come forward with evidence of any other complaints
to which the Department should have responded. The undisputed evidence shows
that the City of Dothan properly responded to Carney’s complaints, and Defendant
is entitled to judgment as a matter of law. Because Defendant has satisfied the
requirements of Rule 56(a), summary judgment will be entered in Defendant’s
favor.
3.

Gender Discrimination

In addition to her allegations of racial discrimination, Carney contends that
the City of Dothan treated her unfairly on the basis of her gender. In support of her
gender claims, Carney states, in conclusory fashion, that the Department
discriminated against her on the basis of sex. (Doc. # 1, at 11.) In fact, the factual
allegations in the complaint only mention her sex four times. (See Doc. # 1, at 7,
10, and 11.) In response to the motion for summary judgment, Carney makes no
arguments regarding this alleged gender discrimination. Resolution Trust, 43 F.3d
at 599 (“[G]rounds alleged in the complaint but not relied upon in summary
judgment are deemed abandoned.”). She also fails to cite any specific evidence
regarding gender discrimination. (See generally Doc. # 68.)
The City of Dothan has presented ample evidence establishing that it did not
unlawfully discriminate against Carney, be it on the basis of her race or on the
basis of her sex. Carney has failed to rebut this evidence, and it is clear that there
40

are no genuine disputes as to any material fact.

For the same reasons that

Defendant is entitled to summary judgment as to Carney’s racial discrimination
claims,11 it is also entitled to summary judgment as to her claims of gender
discrimination.
B.

Violation of Consent Decree (Count II)
Defendant is entitled to summary judgment as to any claim allegedly arising

under the Consent Decree.

Pursuant to the Consent Decree, which is dated

February 13, 1976, the City of Dothan agreed to refrain from discriminating in
employment and to implement an affirmative action hiring plan. (Consent Decree,
Doc. # 1-1, at 1–2.)
On its face, the Consent Decree does not provide a separate right of action to
Carney. Contempt is the proper vehicle for enforcement of such an order. Rather
than alleging violation of the order in a separate proceeding, as Carney has done
here, a party seeking to enforce a consent decree should file a motion in the case
from which the decree emanated. See Lyon v. Ashurst, No. 2:08-cv-394, 2008 WL
3821832, at *8 (M.D. Ala. Aug. 13, 2013). Other than to urge the court to

11

Each of Carney’s alleged bases of racial discrimination fails for one or more of the
following reasons: failure to exhaust administrative remedies; inability to show that the relevant
event constitutes an adverse employment action; inability to make out a prima facie case of
discrimination; and inability to show pretext in the face of the City of Dothan’s legitimate,
nondiscriminatory reason. See Part IV.A.2, supra. If Carney’s evidence regarding racial
discrimination was insufficient to overcome this motion for summary judgment, it follows a
fortiori that her claims of gender discrimination, which enjoy no evidentiary support, likewise
cannot survive the instant motion.
41

entertain this cause of action in the interest of “judicial economy,” Plaintiff has
expended no effort in rebutting the City of Dothan’s arguments as to Count II.
With respect to this purported cause of action, there are no genuine disputes of
material fact, and Defendant is entitled to judgment as a matter of law.
C.

Deprivation of First Amendment Rights Under § 1983 (Count III)
In Count III, Carney alleges that she is entitled to relief under 42 U.S.C. §

1983 for deprivation of her First Amendment rights. Though all persons are
entitled to protection under the First Amendment, a public employee enjoys limited
rights to freedom of speech. Bryson v. City of Waycross, 888 F.2d 1562, 1565
(11th Cir. 1989) (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)).
To succeed on a claim under § 1983 for First Amendment retaliation, a
public employee must show (1) that she was speaking as citizen on a matter of
public concern, (2) that her interests as a citizen outweighed the interests of her
employer, and (3) that the speech played a substantial or motivating role in the
adverse employment action. Vila v. Padron, 484 F.3d 1334, 1339 (11th Cir. 2007).
In the interest of clarity, the speech at issue will be briefly reviewed. The elements
of Plaintiff’s case will then be discussed.
1.

Plaintiff’s Speech

The speech giving rise to Plaintiff’s First Amendment claim appeared on her
Facebook page. She made a series of comments regarding Dorner, a Los Angeles
42

policeman who murdered fellow officers and civilians in retaliation for perceived
injustice in his workplace. Carney made comments in which she likened the
LAPD’s response to a lynching, characterized LAPD officers as vigilantes,
accused the LAPD of murder, encouraged others to read Dorner’s manifesto,
upheld Dorner as a man of laudable morals, and described Dorner’s actions as
justified.

When the Dothan Personnel Board questioned Carney about these

statements, she confirmed that she too would feel justified in killing co-workers or
their relatives if they wronged her.
Dothan community members and Carney’s fellow officers responded
negatively to Carney’s posts. One Dothan citizen took to an online forum to
complain, asking whether the Department would tolerate this sort of officer
misconduct. Seventeen officers within the Department filed formal complaints
relating to Carney’s posts, noting that the comments affected their ability to work
with Carney. The Department responded by suspending Carney, reassigning her to
front desk duty, and removing her from any other official assignments.
2.

Carney was Speaking as a Citizen on a Matter of Public Concern

To ultimately prevail on her First Amendment claim, Carney must first show
that she was speaking as a citizen on a matter of public concern. Vila, 484 F.3d at
1339. The resolution of this threshold issue determines whether the speech in
question implicates the First Amendment at all. Id. Where a public employee
43

makes a statement pursuant to her official duties, the First Amendment does not
insulate her from employer discipline. Garcetti v. Ceballos, 547 U.S. 410, 421–22
(2006). Neither is her speech protected where she speaks as an employee on a
personal matter. Vila, 484 F.3d at 1339. For speech to be deemed a matter of
public concern, it must relate to a matter of “political, social, or other concern to
the community.” Watkins v. Bowden, 105 F.3d 1344, 1353 (11th Cir. 1997).
For purposes of this summary judgment motion, there is sufficient evidence
in the record to support a finding that Carney was speaking as a citizen. Carney
did, in connection with her involvement in the crime stoppers program, make
frequent public appearances on behalf of the Department. But there is no evidence
indicating that Carney’s official duties included posting comments on her personal
Facebook page.

See Garcetti, 547 U.S. at 421–22.

It is clear that she was

commenting on the Dorner incident in her private capacity as a citizen.
There is also sufficient undisputed evidence to support a finding that Carney
was speaking on a matter of public concern. Though it is true that Carney’s
commentary on the Dorner incident alluded to her own experiences as a
Department employee, these individualized aspects of her speech do not overcome
its ultimately public nature. Morgan v. Ford, 6 F.3d 750, 755 (11th Cir. 1993)
(“An employee’s speech will rarely be entirely private or entirely public.”). The
gravamen of Carney’s commentary was to complain about perceived improprieties
44

within a government agency; to wit, she alleged wrongdoing on the part of the
LAPD. See Akins v. Fulton Cnty., 420 F.3d 1293, 1304 (11th Cir. 2005) (holding
that employee speech was on a matter of public concern where the employee
complained of wrongdoing within a county government). The fact that Carney
lodged these complaints on a public Facebook page, an undeniably open forum,
bolsters the finding that they were public in nature. Id.
3.

The City of Dothan’s Interests Outweigh Carney’s Interests

As to the issue of balancing interests, the undisputed evidence establishes
that the City of Dothan’s interests in taking disciplinary action against Carney
outweigh Carney’s interests in freedom of speech. Under this prong of the First
Amendment retaliation analysis, the claimant must show that her interests in
freedom of speech outweigh the employer’s interest in maintaining an efficient
workplace. Pickering, 391 U.S. at 568.
In striking a balance between these interests, courts consider whether the
employee’s speech impairs the ability of superiors to discipline subordinates,
affects harmony among co-workers, impairs working relationships for which
loyalty and confidence are necessary, or interferes with the operation of the
government entity. Rankin v. McPherson, 483 U.S. 378, 388 (1987). Crucially,
where the employer is a law enforcement agency, there is a “heightened need for

45

order, loyalty, morale, and harmony” among officers.

Oladeinde v. City of

Birmingham, 230 F.3d 1275, 1293 (11th Cir. 2000).
Applying these principles to the facts of this case, it is evident that the scale
tips in favor of the City of Dothan. Carney’s Facebook statements impaired the
confidence of her fellow officers, garnering seventeen internal complaints. Several
officers within the Department stated that they would not feel comfortable having
Carney back them up in a dangerous situation. Carney, an officer who frequently
represented the Department at community events, publicly discredited the actions
of another law enforcement organization. At least one citizen took to an online
discussion forum to speak out against Carney’s behavior, indicating the erosion of
the community’s trust in the Department as a result of her speech. It is clear that
the interests of the City of Dothan in ensuring efficient operation of the
Department outweigh the interests of Carney in exercising her limited First
Amendment rights.
In light of this finding, the final element of the prima facie case need not be
addressed. Carney has not submitted evidence establishing a genuine dispute of
material fact relevant to this claim, and it is clear that Defendant is entitled to
judgment as a matter of law. Accordingly, as it relates to Count III, Defendant’s
motion for summary judgment is due to be granted.

46

D.

Retaliatory Hostile Work Environment Under Title VII (Count IV)
In Count IV of her complaint, Carney contends that the City of Dothan is

liable for subjecting her to a retaliatory hostile work environment. Issues of
timeliness, as they are relevant to Carney’s exhaustion of administrative remedies,
will be discussed first.

The merits of Carney’s retaliatory hostile work

environment claim will be addressed second. Third, liability for discriminatory
hostile work environment will be discussed. The City of Dothan ultimately is
entitled to summary judgment on Count IV.
1.

Timeliness Issues

Under Title VII’s procedural bar, a plaintiff must file an EEOC charge
within 180 days after an unlawful employment practice. 42 U.S.C. § 2000e-5(e).
When alleging discrete acts of discrimination, a plaintiff may only recover for acts
that occurred within the 180-day period covered by the EEOC charge.
Morgan, 536 U.S. at 114.

See

Discrete acts, which are easy to identify, include

termination, failure to promote, denial of transfer, and failure to hire. Id.
When a plaintiff brings a claim for hostile work environment, however, the
procedural bar applies in a nuanced fashion. Hostile work environment claims
arise from a series of events that collectively constitute actionable employment
discrimination. Id. at 117. The continuing nature of the violation is such that acts
occurring outside of the 180-day period may be properly under consideration. Id.
47

This continuing violations doctrine, however, cannot be used to wedge
untimely discrete acts into the hostile work environment paradigm. If a singular
event is actionable on its own, and it occurs outside the 180-day period, it cannot
form the basis of a hostile work environment claim. See Davis v. Coca-Cola
Bottling Co. Consol., 516 F.3d 955, 970 (11th Cir. 2008) (holding that work
assignments, which constituted discrete acts, are not part of a hostile work
environment); Crayton v. Ala. Dep’t of Agric. & Indus., 589 F. Supp. 2d 1266,
179–80 (M.D. Ala. 2008) (“[A] discrete act cannot be part of a hostile environment
claim and instead constitutes a separate unlawful employment practice.”).
Accordingly, only events that are timely or non-discrete in nature may be
considered in connection with Count IV.
The City of Dothan contends that there are several discrete, untimely events
that should be excluded from consideration with respect to Carney’s hostile work
environment claim. These include failures to promote and work assignments that
occurred after Carney’s April 26, 2013 Charge. (See Doc. # 1, at 16–17.) If
Carney’s amended charge is effective, these events are properly under
consideration. As discussed in Part IV.A.1, supra, it is unclear whether Carney in
fact filed this amended charge with the EEOC. Even taking these potentially
untimely, discrete acts into consideration, the evidence establishes that Carney’s

48

hostile work environment claim is without merit.

Accordingly, this issue of

timeliness need not be decided.
2.

Retaliatory Hostile Work Environment

To establish a prima facie case of retaliatory hostile work environment, a
claimant must show that “(1) she engaged in protected activity; (2) after doing so,
she was subjected to unwelcome harassment; (3) her protected activity was a ‘butfor’ cause of the harassment; (4) the harassment was sufficiently severe or
pervasive to alter the terms and conditions of her employment; and (5) a basis
exists for holding her employer liable either directly or vicariously.” Swindle v.
Jefferson Cty. Comm’n, 593 F. App’x 919, 929 n.10 (11th Cir. 2014).

These

elements will be addressed as they apply to Carney’s claim.
a.

Protected Activity

Carney bases her retaliatory hostile work environment claim on two
instances of purported protected activity. First, she contends that she engaged in
protected activity when she complained about perceived mistreatment of fellow
officer Sylvia Summers (“Summers”).

The City of Dothan argues that this

complaint cannot constitute protected activity because Carney has failed to show
that any of the alleged harassing officers knew of this protected activity. (See Doc.
# 43, at 90 (citing Brown v. City of Opelika, 211 F. App’x 862, 863 (11th Cir.
2006).) Whether decision makers knew of the protected activity, however, speaks
49

to the causation element of the prima facie case.

Complaining about the

mistreatment of other officers constitutes a protected activity.

Whether the

protected activity is causally linked to the alleged harassing conduct will be
address in Part IV.D.2.c, infra.
Carney further alleges that she engaged in protected conduct when she filed
her EEOC charge of discrimination on April 26, 2013. The parties agree that this
charge is protected activity that can form the basis of a retaliatory hostile work
environment claim.
b.

Unwelcome Harassment

In support of her claim, Carney alleges that the Department denied her
promotional opportunities, transferred her to a new office location, suspended her
for ten days without pay, removed her from certain work assignments, demoted her
to front desk duty, subjected her to a psychological exam, subjected her to racial
jokes and slurs, placed her on probation, and terminated her employment. (Doc. #
1, at 16–17.) The City of Dothan contends that, with respect to several of these
alleged harassing incidents, the Department’s conduct does not constitute
harassment. It argues that any action it took for a legitimate, non-retaliatory reason
cannot, by definition, constitute harassment. (Doc. # 43, at 91.) Whether the
Department took action for non-retaliatory reasons goes to the causation element of
the prima facie case, and accordingly will be addressed in Part IV.D.2.c, infra.
50

c.

Causation

In its motion for summary judgment, the City of Dothan contends that
Carney fails to establish that her protected activity was the but-for cause of any
alleged harassing conduct. First, it argues that Carney cannot establish that any
decision maker knew of her complaints regarding Summers. Second, it contends
that, with respect to several instances of allegedly harassing conduct, it can show
that it took action for a legitimate reason.

Third, it argues that Carney’s

misconduct severs any causal connection between her protected activity and the
adverse employment action.
i.

Decision-Makers were Unaware of Summers Complaints

With respect to her complaints regarding the mistreatment of Summers,
Carney fails to come forward with evidence establishing that any Department
decision-makers were aware of these complaints.

Accordingly, she cannot

establish the causation element of her retaliatory hostile work environment claim.
Brown, 211 F. App’x at 863. In her deposition, Carney stated that she could not
identify any officers within the Department who were privy to these complaints.
(Carney Depo., Doc. # 44-1, at 47.) Carney cites no evidence even establishing
that she made these complaints. Accordingly, this activity cannot form the basis of
Carney’s retaliatory hostile work environment claim. Carney’s filing of the EEOC
charge therefore is the only protected activity that can form the basis of this claim.
51

ii.

The Department’s Legitimate Reasons

The City of Dothan has come forward with evidence establishing that it took
each of the allegedly harassing employment actions for a legitimate, nonretaliatory reason.12 Though the City of Dothan offers this evidence to show that
the actions it took do not constitute harassment, it is more properly considered as
showing that Carney cannot prove the causation element of the prima facie case.13
It is true, as Carney notes, that the causation inquiry operates differently in
discrete action and hostile work environment claims. Whereas the question of
12

In the context of a claim for discriminatory retaliation, and where proof of
discriminatory intent is offered by way of circumstantial evidence, courts apply a burden-shifting
scheme akin to the McDonnell Douglas framework. If the plaintiff makes out a prima facie case
of retaliation, the burden shifts to the employer to articulate a legitimate reason for the adverse
employment action. Sullivan v. Nat’l R.R. Passenger Corp., 170 F.3d 1056, 1059 (11th Cir.
1999). If the employer proffers a legitimate reason, the burden shifts back to the employee to
show that the legitimate reason was pretext for prohibited retaliatory conduct. Id.
Under this burden-shifting framework, the employer’s legitimate reason for taking
adverse action against the employee seems to merge with the causation element of the prima
facie case. That is, if the employer took each individual action for a legitimate, non-retaliatory
reason, then the protected activity was not a but-for cause of aggregate hostile work
environment, which is the ultimate adverse employment action in a retaliatory hostile work
environment claim.
In this case, the City of Dothan’s legitimate reasons for taking each action will be
addressed in conjunction with the causation portion of the discussion. If Carney were able to
make out a prima facie case, the evidence the City of Dothan has brought forth would apply with
equal force to rebut it. See Sullivan, 170 F.3d at 1059. But because Carney cannot establish the
requisite elements of the prima facie case, this evidence need not be analyzed in that posture.
13

The City of Dothan contends that employer conduct constitutes harassment only where
it causes substantial distress and serves no legitimate purpose. (Doc. # 43, at 91 (citing United
States v. Tison, 780 F.2d 1569, 1570 (11th Cir. 1986).) This definition of harassment derives
from the Victim and Witness Protection Act, 18 U.S.C. § 1514, which relates to intimidation of
witnesses and informants. The City of Dothan has cited no authority suggesting that Congress
intended this definition of harassment to apply in the Title VII context. Because this motion for
summary judgment can be disposed of on different grounds, the City of Dothan’s invitation to
apply definitions across statutes will be declined.
52

causation in a discrete action claim focuses singularly on the but-for cause of each
employment action, the question in a hostile environment case is more holistic,
focusing on whether the protected activity was the but-for cause of the harassing
environment. See Gowski v. Peake, 682 F.3d 1299, 1313 (11th Cir. 2012). But the
particular reasoning of Gowski, on which Carney relies, is inapposite.
The Gowski court held that the employer’s successful invocation of the
same-decision defense, which allows the defendant to show that it would have
made the same employment decision despite the presence of discriminatory intent,
is insufficient to undermine the causation element of a retaliatory hostile work
environment claim. Id. But the same-decision defense is only relevant in mixedmotives cases, where the plaintiff demonstrates that race (or some other protected
characteristic) was a motivating factor in the challenged employment practice. 42
U.S.C. § 2000e-2(m); 42 U.S.C. § 2000e-5(g)(2)(B). See Desert Palace, Inc. v.
Costa, 539 U.S. 90, 94–95 (2003).
In this case, there has been no finding—and there is insufficient evidence to
support a finding—that discriminatory animus was a motivating factor in the
employment actions at issue. Accordingly, this is not a mixed-motives case, and
the implications of the same-decision defense have no bearing on the outcome of
the City of Dothan’s motion for summary judgment. Put another way, there is no
finding of discriminatory animus cutting against the City of Dothan’s legitimate
53

reasons for taking each discrete employment action. If the City of Dothan took
each allegedly harassing action for a legitimate, non-retaliatory reason, then it
stands to reason that Carney’s protected activity was not the but-for cause of the
alleged resulting hostile environment.
Here, the City of Dothan has offered substantial evidence showing that it
took all allegedly harassing employment actions for legitimate, non-retaliatory
reasons. This evidence is sufficient to show that, in the aggregate, the allegedly
harassing environment to which Carney was subject is not causally linked to her
protected activity. The legitimate reasons will be briefly addressed.
As to any alleged denials of promotions, it is evident that the City of Dothan
took these actions for legitimate reasons. It initially denied her promotion to
corporal because new hires were placed on probationary working status.

It

eventually promoted her to corporal when she was eligible. The Department
determined that Carney was eligible for a promotion to sergeant, but circumstances
forced it to terminate her before it reached her name in the promotions list.
Carney’s protected activity clearly was not the but-for cause of these promotional
decisions.
With respect to Carney’s transfer to a new office location, it is clear that the
Department took this action for a legitimate reason unrelated to her protected
activity.

In order to attain a stronger presence within the community, the
54

Department moved its community services division to a new location closer to a
city recreation center. The Department moved a white male officer to this new
location as well. It is clear that Carney’s protected activity was not the but-for
cause of this relocation.
The City of Dothan likewise subjected Carney to a psychiatric evaluation for
legitimate, non-retaliatory reasons. When Carney testified at a Personnel Board
hearing regarding disciplinary actions taken against her, she stated that she would
feel justified killing her fellow officers or their family members under certain
circumstances. The Department, in an effort to ensure that Carney was fit for duty,
and out of understandable concern for the safety of officers and community
members, ordered the psychiatric exam to determine her fitness for duty. The
Department was justified in taking this action, and it clearly was not retaliating
against Carney for her protected activity. See Watson v. City of Miami Beach, 177
F.3d 932, 935 (11th Cir. 1995) (holding that a police department may, as a matter
of business necessity, order a fitness for duty exam whenever it has reason to
believe that an officer is even mildly paranoid, oppositional, or hostile).
It is also clear that the Department suspended Carney for a legitimate, nonretaliatory reason. The suspension followed the Department’s investigation of
Carney’s Facebook posts about the Dorner incidents. After a lengthy investigation,
the Department determined that Carney had violated its social media policies and it
55

disciplined her accordingly. Both the City of Dothan Personnel Board and the
Houston County Circuit court upheld this disciplinary action. Carney’s protected
activity was not the cause of this challenged action.
With respect to work assignments, it is clear that the Department had a
legitimate reason for removing Carney from certain duties and placing her on front
desk duty. As with the suspension, the Department made these reassignments to
discipline Carney for her violation of the social media policy. For this same
legitimate reason, the Department placed Carney on probation.

There is no

evidence indicating that the probationary period resulted from retaliatory animus.
As for Carney’s termination, to the extent this event contributed to a hostile
working environment, it is clear that protected activity played no role in the
Department’s decision. Carney repeatedly violated orders from a superior officer,
using her official Department vehicle to impede the resolution of a domestic
dispute. The Department itself did not initiate this domestic dispute, nor did
Carney.

Cloyd called for assistance, and in compliance with its duties, the

Department responded to the call. When Carney used the official dispatcher to
contact a superior officer, she invited her superior officers to give her official
orders in her official capacity as an officer. Whether, when, and how either Carney
or Cloyd initiated or perpetuated this unfortunate episode is of no moment; the
relevant consideration is Carney’s gross insubordination.
56

It is clear that the

Department terminated Carney for a legitimate reason unrelated to her protected
activity.
The only remaining element contributing to the alleged retaliatory hostile
work environment is use of “racial jokes and slurs” within the Department. Carney
brought forth evidence of only one such joke or slur.14 She testified that another
officer referred to her shift as the “soul patrol.” (Carney Depo., Doc. # 44-1, at
147.) Carney admitted that this comment took place several years ago, and she has
offered no evidence establishing that this comment was in response to her filing an
EEOC complaint.

It is clear from the undisputed evidence that this isolated

comment was in no way related to Carney’s protected activity.
Assuming arguendo that this spate of allegedly harassing conduct is
collectively sufficient to constitute a hostile work environment, Carney has offered
no evidence indicating that her EEOC complaint was the but-for cause of its
creation. Nothing in the record suggests that the Department took these separate
actions in a concerted effort to punish Carney for engaging in protected activity. In
fact, the undisputed evidence shows that the Department reacted appropriately to
her EEOC complaint, diligently investigating and responding to each allegation of
discrimination. The record is devoid of evidence from which a finder of fact could

14

Carney also mentioned an instance in which an officer from a northern state was called
a “Yankee.” (Carney Depo., Doc. # 44-1, at 147.) This does not appear to be related to race, and
Carney makes no effort to argue that it is so related.
57

conclude that Carney’s protected activity was the but-for cause of the alleged
harassing conduct. For this reason, the City of Dothan is entitled to summary
judgment on Count IV.
iii.

Carney’s Misconduct Severs the Chain of Causation

The City of Dothan finds further support for its motion for summary
judgment in the fact that Carney’s misconduct severs the chain of causation. It is
clear that her suspension, work reassignments, probation, and termination resulted
not from her complaints of discrimination, but rather from her violation of
established policies. She violated social media policy, and she engaged in gross
insubordination. It is clear that this misconduct is sufficient to sever any causal
chain that might exist between her protected activity and the alleged harassing
conduct. See Fleming v. Boeing Co., 120 F.3d 242, 248 (11th Cir. 1997).
d.

Severe or Pervasive Harassment

The City of Dothan is also entitled to summary judgment because the
undisputed evidence shows that the alleged harassment to which Carney was
subjected was not severe or pervasive. Carney produced evidence of one incident
of the use of a racial joke or slur. According to Carney, a white officer within the
Department referred to her patrol as the “soul patrol.”

It is clear that this

constitutes a mere offensive utterance rather than conduct that is threatening or
humiliating. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). This isolated
58

comment cannot be said to be so severe or pervasive as to have a material effect on
the terms and conditions of her employment.
Ultimately, the City of Dothan is entitled to summary judgment on Carney’s
retaliatory hostile work environment claim.

Carney has failed to establish a

genuine dispute of material fact with respect to the causation element of her claim.
She has also failed to offer evidence establishing a dispute of material fact
regarding whether she experienced severe or pervasive retaliatory harassment. The
evidence the City of Dothan has brought forth, which Carney has failed to rebut in
any material way, establishes that this claim is without merit and that the City of
Dothan is entitled to judgment as a matter of law. Accordingly, as it relates to the
claim for retaliatory hostile work environment, the City of Dothan’s motion for
summary judgment is due to be granted.
3.

Discriminatory Hostile Work Environment

Though Carney styles Count IV as a claim for retaliatory hostile work
environment, her pleading and the arguments she makes in response to the motion
for summary judgment indicate that she also intends to assert a claim for
discriminatory hostile work environment. For the same reasons her claim for
retaliatory hostile work environment fails, any claim for discriminatory hostile
work environment also must fail.

59

Specifically, Carney has not submitted sufficient evidence to establish the
existence of a genuine dispute of material fact regarding whether the alleged
harassment she faced was based on her status as a black woman.

See Part

IV.D.2.c, supra (discussing the legitimate, non-discriminatory reasons for which
the City of Dothan took allegedly harassing actions). It is evident that, for every
action allegedly contributing to the existence of a hostile work environment, the
City of Dothan had a legitimate, nondiscriminatory justification for its conduct. In
addition, Carney fails to establish the existence of a genuine issue of material fact
regarding the severe or pervasive nature of the alleged harassment.

See Part

IV.D.2.d, supra (discussing the paucity of evidence that would support a finding
that Carney faced severe or pervasive harassment). The record is insufficient to
support a finding that Carney faced harassment of a magnitude sufficient to alter
the terms and conditions of her employment. The City of Dothan therefore is
entitled to summary judgment as to the entirety of Count IV.
V. CONCLUSION
Accordingly, it is ORDERED that Defendant’s motion for summary
judgment (Doc. # 43) is GRANTED. It is further ORDERED that Plaintiff’s
motion to set aside order on motion for leave to file amended complaint (Doc. #
67) is DENIED as moot.
A separate final judgment will be entered.
60

DONE this 28th day of January, 2016.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

61