Braswell et al v. Allen et al

Filing 39

MEMORANDUM OPINION AND ORDER granting defendants' 24 MOTION for Summary Judgment; that all of Plaintiffs' claims are DISMISSED WITH PREJUDICE; that the trial and pretrial in this matter are CANCELLED; that the Court will enter a separate final judgment in favor of Defendants consistent with this Memorandum Opinion and Order. Signed by Hon. Chief Judge Mark E. Fuller on 11/19/2008. (cc, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION K E IT H BRASWELL, et al., P l a i n t if f s , v. R IC H A R D ALLEN, et al., D e f e n d a n ts . ) ) ) ) ) ) ) ) )

C A S E NO. 2:07-cv-833-MEF (W O recommended for publication)

M E M O R A N D U M OPINION AND ORDER I . INTRODUCTION K e ith Braswell ("Braswell"), Anthony Smiley, Sr. ("Smiley"), and Roderick U n d e rw o o d ("Underwood") (collectively "Plaintiffs") filed a Complaint (Doc. #1) on S e p t e m b e r 14, 2007, bringing claims of race discrimination and retaliation against R ich a rd Allen and Charles Hadley ("Defendants") relating to their employment with A la b a m a Department of Corrections ("ADOC"). Pursuant to 42 U.S.C. § 1981 ("section 1 9 8 1 " ) and 42 U.S.C. § 1983 ("section 1983"), Plaintiffs allege that they have been d e n ie d rights created by federal statutes and by the United States Constitution. Plaintiffs a ls o allege race discrimination and retaliation pursuant to 42 U.S.C. § 2000e, et seq (" T itle VII"). Plaintiffs seek declaratory relief, compensatory damages, punitive d a m a g e s , equitable relief, costs, and attorneys' fees. This cause is before the Court on D ef en d an ts ' Motion for Summary Judgment (Doc. # 24) filed on September 5, 2008. In th i s motion, Defendants argue that they are entitled to summary judgment because

P la in tif f s cannot establish a prima facie case on any of their claims. The Court agrees a n d finds that the motion for summary judgment is due to be GRANTED for the reasons s e t forth in this Memorandum Opinion and Order. II. JURISDICTION AND VENUE J u ris d ic tio n over Plaintiffs' federal claims is proper under 28 U.S.C. §§ 1331 (f e d era l question) and 1343 (civil rights). The parties do not contest personal jurisdiction o r venue, and the Court finds adequate allegations in support of both personal jurisdiction a n d venue. I I I . SUMMARY JUDGMENT STANDARD U n d e r Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is a p p ro p ria te "if the pleadings, depositions, answers to interrogatories, and admissions on f ile , together with the affidavits, if any, show that there is no genuine issue as to any m a te ria l fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party asking for summary ju d g m e n t "always bears the initial responsibility of informing the district court of the b asis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it b e lie v e s demonstrate the absence of a genuine issue of material fact." Id. at 323. The m o v a n t can meet this burden by presenting evidence showing there is no dispute of m a ter ial fact, or by showing the non-moving party has failed to present evidence in

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s u p p o rt of some element of its case on which it bears the ultimate burden of proof. Id. at 3 2 2 -2 3 . O n c e the moving party has met its burden, Rule 56(e) "requires the nonmoving p a r ty to go beyond the pleadings and by [its] own affidavits, or by the `depositions, a n sw e rs to interrogatories, and admissions on file,' designate `specific facts showing that th e re is a genuine issue for trial.'" Id. at 324. To avoid summary judgment, the n o n m o v in g party "must do more than simply show that there is some metaphysical doubt a s to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 5 7 4 , 586 (1986). On the other hand, a court ruling on a motion for summary judgment m u s t believe the evidence of the non-movant and must draw all justifiable inferences f ro m the evidence in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U .S . 242, 255 (1986). After the nonmoving party has responded to the motion for s u m m a ry judgment, the court must grant summary judgment if there is no genuine issue o f material fact and the moving party is entitled to judgment as a matter of law. See Fed. R . Civ. P. 56(c). I V . FACTS T h e Court has carefully considered all documents, declarations and affidavits s u b m itte d in support of and in opposition to the motion. The submissions of the parties, v i e w e d in the light most favorable to the non-moving party, establish the following facts:

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A . The Parties B ra s w e ll, Underwood, and Smiley are African American males. The ADOC e m p lo ye d Plaintiffs as correctional officers at the Red Eagle Honor Farm ("Red Eagle") in 2006. Plaintiffs assert numerous employment discrimination and retaliation claims a g a in s t Richard Allen ("Allen"), Commissioner of the ADOC, and Charles Hadley (" H a d le y" ), then Warden of Red Eagle, in their official capacities and individually. B. Smiley's Suspension and Related Administrative Proceedings 1 . Smiley's Suspension O n March 28, 2006, Smiley's assigned shift was from 7:00 a.m. to 4:00 p.m. H a d le y saw Smiley leave his shift at 12:15 p.m. and checked the log book. He discovered th a t Smiley had signed in at 6:00 a.m. and signed out at 2:00 p.m. Smiley alleges that he e n te re d his time incorrectly because he had worked over-time on March 26, 2006, and w a s confused about how to properly record his time. Because Hadley had seen Smiley lea v e early and record the wrong time, Hadley accused Smiley of falsifying time sheets a n d notified ADOC Personnel Division. ADOC Personnel Division instructed Hadley to g iv e Smiley at five-day suspension. 2. Smiley's Administrative Hearing O n May 23, 2006, Red Eagle held an administrative hearing on Smiley's su sp en sion . Attorney Julian McPhillips represented Smiley. The Hearing Officer, W a rd e n James DeLoach, found Smiley guilty and recommended a written reprimand.

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A lle n approved the written reprimand, and Hadley issued the reprimand to Smiley on Ju n e 9, 2006. Smiley submitted a rebuttal in response in which Smiley admitted he did n o t properly obtain Hadley's permission to change his work hours. (Doc. #26 Ex. 1). 3 . Braswell and Underwood's Statements in Support of Smiley Plaintiffs Braswell and Underwood prepared statements for Smiley's ad m inistrat iv e hearing. (Doc. #26 Exs. 4, 7). Their statements accused their supervisors a n d colleagues of acts that violate ADOC policies and the Alabama Ethics Act.1 An in v e stig a tio n by ADOC Investigation & Intelligence Division found that Braswell and U n d e rw o o d 's statements were unsubstantiated. (Doc. #26 Ex. 5). Braswell's statement a ls o contended that Defendants did not discipline a white officer, Jerry Odom, for c o n d u c tin g personal business while working. Defendants introduced evidence that Odom w a s not disciplined because an investigation conducted by ADOC Investigation & In tellig e n c e Division showed that Odom had not conducted personal business while w o rkin g . (Doc. #37 Ex. 1). P la in tif f s also allege a Caucasian officer, Donnie Brown ("Brown"), submitted a s ta te m e n t at Smiley's hearing and was not reprimanded. (Doc. #25 Exs. 20, 22). Defendants presented evidence that Brown's statement included an accusation that a s te w a rd had failed to appear for his shift on one occasion. (Doc. #37 Ex. 1). Plaintiffs

Braswell and Underwood accused Hadley and other ADOC employees of using inmates to work on personal projections for personal gain, taking state property home for personal gain, and being late for work. 5

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d id not provide any evidence of the content of Brown's statement. C . Alleged Discriminatory and Retaliatory Conduct In this lawsuit, Plaintiffs contend that they were discriminated against on the basis o f their race. Furthermore, they allege that Defendants retaliated against them after they p a rtic ip a te d in Smiley's administrative hearing. 1 . Smiley's Claims Smiley alleges that he was discriminated against on the basis of his race when he w a s given a reprimand in June of 2006. He also alleges that he was demoted when he w a s transferred from the first shift (9 a.m. to 4 p.m.) to the third shift (10 p.m to 6 a.m.) a n d from Inmate Control System Supervisor to third-shift supervisor. Smiley does not p r o v i d e any evidence that the transfer affected Smiley's pay, seniority, or responsibilities. A d d itio n a lly, Smiley alleges that he received an unjust employment evaluation in J a n u a ry of 2007 that diminished his likelihood of being promoted. Smiley offers no e v id e n c e with respect to this allegedly unjust evaluation. Defendants introduced evidence th a t Smiley's 2006/2007 annual appraisal dated January 4, 2007, contains a rating of " e x ce e d s standards." (Doc. # 26 Ex. 2). Smiley's evaluator described him as someone w h o "has done an exceptional job" and "deserves this rating of exceeds standards." Id. In addition, Smiley received a two-step pay increase on his anniversary date of April 1, 2 0 0 7 , the maximum increase allowed by ADOC Personnel, in part because of his positive e v a lu a tio n . (Doc. #26 Ex. 3). The undisputed evidence before this Court establishes that

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e v e n with a reprimand, ADOC regulations do not prevent an employee from getting a p ro m o tio n . (Doc. #37 Ex. 1). 2. Braswell and Underwood's Claims In addition, Braswell and Underwood allege that Hadley unjustly transferred them to other facilities as a consequence of their statements at Smiley's hearing. On June 22, 2 0 0 6 , Allen ordered Braswell transferred to the Draper Correctional Facility and U n d e rw o o d transferred to Staton Correctional Facility. (Doc. #26 Exs. 17, 8). Hadley a ls o requested that ADOC dismiss Braswell and Underwood, but instead ADOC in s tru c te d Hadley to proceed with suspensions and set hearings for both Plaintiffs. At B ra sw e ll's hearing on October 19, 2006, Willie Thomas was the Hearing Officer, Hadley a c te d as the presenting officer, and attorney Jason Manasco represented Braswell. Hearing Officer Thomas recommended a twenty-day suspension after finding Braswell g u ilty of making false statements. (Doc. #26 Ex. 11). Allen later reduced Braswell's s u s p e n s io n to ten days. Similar parties were present at Underwood's disciplinary hearing on October 19, 2 0 0 6 . Willie Thomas presided as the Hearing Officer, Hadley acted as the presenting o f f ic e r, and attorney Manasco represented Underwood. Underwood presented evidence a t his hearing and called witnesses. (Doc. #36 Ex. 19). Hearing Officer Thomas found U n d e rw o o d guilty of making false statements and recommended a ten-day suspension. (Doc. #26 Ex. 10). Allen reduced Underwood's suspension to five days.

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D . Plaintiffs' Charges of Discrimination O n August 23, 2006, Underwood signed a Charge of Discrimination against the A D O C with the Equal Employment Opportunity Commission ("EEOC"). By signing the C h a rg e of Discrimination, Underwood declared under perjury that his statements in the c h a rg e were true and correct. In the charge, Underwood complained of discrimination on th e basis of his race. Underwood represented that Hadley recommended his dismissal for h is statement at Smiley's hearing and did not discipline a white officer for a similar s ta te m e n t. Underwood also complained of retaliation. On September 11, 2006, Smiley signed a Charge of Discrimination against ADOC w ith the EEOC. Smiley complained of discrimination on the basis of race and stated that h e was given a written reprimand for leaving his assigned post. He also stated that he was a w a re of a white correctional officer who was not disciplined for the same conduct. Smiley did not check the "retaliation" box on the Charge of Discrimination and claimed th a t the discrimination took place from March through May of 2006. On September 18, 2006, Braswell signed a Charge of Discrimination against A D O C with the EEOC. Braswell complained of discrimination on the basis of race and re ta lia tio n . Braswell cited two incidents where the ADOC allegedly acted unlawfully by (1 ) unfairly disciplining him for his statement at Smiley's hearing, and (2) falsely ac cu sing him of failing to assist another officer.2

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The second incident was not made a part of this lawsuit. 8

E . The Lawsuit O n September 14, 2007, Plaintiffs filed suit in this Court. Plaintiffs seek d e c lar a to ry and equitable relief as well as damages for alleged discrimination on the basis o f race and retaliation. Smiley complained of the following acts of discrimination: (1) D e f en d a n ts gave him a reprimand and did not give Caucasian employees a reprimand for s im ila r actions, (2) Defendants transferred Smiley from the first shift to the third shift and f ro m Inmate Control Supervisor to third-shift supervisor and did not transfer similarly s itu a te d Caucasian employees, and (3) Defendants gave him an unfair employment e v a lu a tio n and did not give similarly situated Caucasian employees unfair evaluations. Plaintiffs Braswell and Underwood complained that they were unlawfully discriminated a g a in st when Defendants transferred them to other facilities and did not transfer similarly s itu a te d Caucasian employees. Plaintiffs Braswell and Underwood also complained of re ta lia tio n . Plaintiffs sought a remedy for the alleged discrimination and retaliation p u rsua n t to sections 1981 and 1983 (Count One) and Title VII (Count Two). V . DISCUSSION P la in tif f s seek recovery pursuant to section 1981, section 1983, and Title VII. The C o u r t will first consider Plaintiffs' Title VII claims. It will then discuss Plaintiffs' s e c tio n 1981 and section 1983 claims. A . Title VII Claims A n employee bringing a claim under Title VII must initially establish a prima facie

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c a se of discrimination through one of three methods: by presenting direct evidence of d is c rim in a to ry intent, presenting circumstantial evidence of discrimination by satisfying th e analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and its p ro g e n y, or by introducing statistical evidence of discrimination. Walker v. NationsBank o f Florida, N.A., 53 F.3d 1548, 1556 (11th Cir. 1995). Because Plaintiffs have presented n e ith e r appropriate statistical evidence, nor direct evidence, in support of his claims of d is c rim in a tio n , the Court will address only Plaintiffs' circumstantial evidence. To establish a discrimination claim by circumstantial evidence using the M c D o n n e l l Douglas framework, the employee has the initial burden of showing, by a p re p o n d e ra n c e of the evidence, a prima facie case of the proscribed practice. Young v. G e n e r a l Foods Corp., 840 F.2d 825, 828 (11th Cir. 1988), cert. denied, 488 U.S. 1004 (1 9 8 9 ). The essence of the prima facie case is that the employee presents circumstantial e v id e n c e sufficient to generate a reasonable inference by the fact finder that the employer u s e d prohibited criteria in making an adverse decision about the employee. If established, th e prima facie case raises a rebuttable presumption that the employer is liable to the e m p lo ye e . Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). "Demonstrating a prima facie case is not onerous; it requires only that the plaintiff e sta b lis h facts adequate to permit an inference of discrimination." Holifield v. Reno, 115 F .3 d 1555, 1562 (11th Cir. 1997).

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T h e Eleventh Circuit Court of Appeals has repeatedly emphasized that the re q u is ite showings that make up a prima facie case are not meant to be rigid or inflexible. See, e.g., Schoenfeld v. Babbitt, 168 F.3d 1257, 1268 (11th Cir. 1999) (collecting cases). In cases where the evidence does not fit neatly into the classic p rim a facie case formula, for example, [the Eleventh Circuit h a s] stated that "[a] prima facie case of disparate treatment c a n be established by any `proof of actions taken by the e m p l o ye r from which we infer discriminatory animus because e x p e rie n c e has proved that in the absence of any other ex p lan a tio n it is more likely than not that those actions were b o tto m ed on impermissible considerations.'" Id . at 1268 (citing Hill v. Metro. Atlanta Rapid Trans. Auth., 841 F.2d 1533 (11th Cir. 1 9 8 8 ), modified, 848 F.2d 1522 (11th Cir. 1988) (quoting Furnco Constr. Corp. v. W a t e rs , 438 U.S. 567, 576 (1978))). Once a plaintiff establishes the requisite elements of the prima facie case, the d e f en d a n t has the burden of producing a legitimate, non-discriminatory reason for the c h a lle n g e d employment action. See, e.g., Holifield v. Reno, 115 F.3d at 1564 (citing T e x a s Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981)). The employer's burden is " e x ce e d in g ly light." Holifield, 115 F.3d at 1564. This burden is one of production, not p e rs u a s io n and consequently, the employer need only produce evidence that could allow a ratio n al fact-finder to conclude that the challenged employment action was not made for a d is c rim in a to ry reason. See, e.g., Davis v. Qualico Miscellaneous, Inc., 161 F. Supp. 2d 1 3 1 4 , 1321 (M.D. Ala. 2001).

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If such a reason is produced, a plaintiff then has the ultimate burden of proving the re a s o n to be a pretext for unlawful discrimination. See, e.g., Holifield, 115 F.3d at 1565; C o m b s v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997) (plaintiff "has the o p p o rtu n ity to discredit the defendant's proffered reasons for its decision"). Thus, once th e employer articulates a legitimate, non-discriminatory reason, the burden returns to the e m p lo ye e to supply "evidence, including the previously produced evidence establishing th e prima facie case, sufficient to permit a reasonable fact-finder to conclude that the re a so n s given by the employer were not the real reasons for the adverse employment d e c is io n ." Davis, 161 F. Supp. 2d at 1322 (citing Chapman v. AI Transp., 229 F.3d 1012, 1 0 2 4 (11th Cir. 2000) (en banc)). The plaintiff may seek to demonstrate that the p ro f f ere d reason was not the true reason for the employment decision "either directly by p e rs u a d in g the court that a discriminatory reason more likely motivated the employer or in d ire c tly by showing that the employer's proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256; Combs, 106 F.3d at 1528. A plaintiff's prima facie case, c o m b in e d with sufficient evidence to find that the employer's asserted justification is f a ls e , may permit the trier of fact to conclude that the employer unlawfully discriminated. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000). T o make out a prima facie case of racial discrimination under Title VII, a plaintiff m u s t show (1) he belongs to a protected class; (2) he was qualified to do the job; (3) he w a s subjected to adverse employment action; and (4) his employer treated similarly

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s itu a te d employees outside his class more favorably. See Knight v. Baptist Hosp. of M ia m i, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003). Defendants do not contend that P lain tiff s are not members of a protected class or that Plaintiffs are not qualified for their jo b s . Defendants argue that Plaintiffs cannot establish a prima facie case of race d is c rim in a tio n because none of Defendants' acts constitute adverse employment actions a n d Plaintiffs cannot show Defendants treated similarly situated employees outside P la in t if f s ' class more favorably. The Court agrees. 1 . Smiley's Title VII Claims a . Smiley's Claims of Alleged Discrimination S m ile y argues he was discriminated against on three occasions: (1) a written re p rim a n d on May 23, 2006, (2) his shift transfers, and (3) an unjust employment e v a lu a tio n on January 4, 2007. The Court concludes that no reasonable fact finder could f in d that these occasions constitute an adverse employment action. Therefore, Plaintiffs a re unable to establish a prima facie case of discrimination with respect to Smiley. i. Written Reprimand F o r the purposes of a Title VII discrimination claim, the Eleventh Circuit defines a n adverse employment action as an "ultimate employment decision" or some other s h o w in g of substantiality in the employment context. See Crawford v. Carroll, 529 F.3d 9 6 1 , 970 (11th Cir. 2008); Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th C ir. 2001). An ultimate employment decision includes termination, failure to hire, or

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d e m o tio n . Crawford, 529 F.3d at 970. More particularly, when defining the level of s u b s ta n tia lity required for a Title VII discrimination claim, the Eleventh Circuit requires a n employee to demonstrate he suffered "a serious and material change in the terms, c o n d itio n s , or privileges of employment" to show an adverse employment action. Davis, 2 4 5 F.3d at 1239. A reprimand that has a meaningful adverse effect on an employee's w o rk in g conditions may be cognizable under Title VII. Keenan v. American Cast Iron P ip e Co., 707 F.2d 1274, 1277 (11th Cir. 1983). However, "the protections of Title VII s im p ly do not extend to `everything that makes an employee unhappy.'" Davis, 245 F.3d a t 1242 (quoting Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1997)). A rep rim an d does not constitute an adverse employment action when the employee suffers n o tangible harm as a result. Davis, 245 F.3d at 1240-1241; Wallace v. Ga. Dep't of T r a n sp ., No. 06-13345, 2006 WL 3626967, at *2 (11th Cir. Dec. 13, 2006). S m iley's reprimand does not constitute an adverse employment action sufficient to e sta b lis h a prima facie case of discrimination. Defendant Hadley issued Smiley a written re p rim a n d after Smiley had been found guilty of falsifying time sheets at an a d m in istra tiv e hearing. Smiley has presented no evidence that the reprimand led to ta n g ib le harm in the form of a loss of pay or benefits, or lost opportunity for a job p ro m o tio n . Therefore, no reasonable fact finder could find that the reprimand affected S m ile y' s terms, conditions, or privileges of employment to constitute an adverse e m p lo ym e n t action within the meaning of Title VII.

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ii. Shift Transfer C o u rts have been reluctant to hold that job reassignments and lateral transfers a m o u n t to adverse employment action when unaccompanied by any tangible harm. See, e .g ., Williams v. Bristol-Myer Squibb Co., 85 F.3d 270, 274 (7th Cir. 1994) (holding that " a purely lateral transfer, that is, a transfer that does not involve a demotion in form or su b sta n c e , cannot rise to the level of a materially adverse employment action"); see also K o c sis v. Multi-Care Mgmt., Inc., 79 F.3d 876, 885 (6th Cir. 1996) (finding that " r e a ss ig n m e n t s without salary or work hour changes do not ordinarily constitute adverse e m p lo ym e n t decisions in employment discrimination claims"); Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1557 (D.C. Cir. 1997) (agreeing with "other circuits [which] h a v e held that changes in assignments or work-related duties do not ordinarily constitute a d v e rs e employment decisions if unaccompanied by a decrease in salary or work hour c h a n g es " ). In unusual instances, a change in work assignments may be so substantial and m a te ria l that it alters the "terms, conditions, or privileges" of employment. Davis, 245 F .3 d at 1245; cf. McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1077-78 (11th Cir. 1 9 9 6 ). However, the Eleventh Circuit has noted that "[i]n the vast majority of instances ... an employee alleging a loss of prestige on account of a change in work assignments, w ith o u t any tangible harm, will be outside the protection afforded by Congress in Title V II's anti-discrimination clause." Id. at 1245. Therefore, for a shift transfer to constitute a n adverse employment action within the meaning of Title VII, the transfer must result in

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a tangible harm. P la in tif f s allege Smiley suffered multiple adverse employment actions when he w a s transferred from the first shift (9 a.m. to 4 p.m.) to the third shift (10 p.m to 6 a.m.) a n d from Inmate Control System Supervisor to third-shift supervisor. Plaintiffs do not p ro v id e any evidence that Smiley was demoted or that Smiley's shift transfer resulted in a n y tangible change in his employment. Therefore, no reasonable fact finder could find S m iley's transfer constitutes an adverse employment action and this claim also fails to m e e t the prima facie requirements of a discrimination claim. iii. 2006/2007 Employment Evaluation P la in t if f s argue that Smiley's 2006/2007 annual appraisal constitutes an adverse e m p lo ym e n t action because it affected his likelihood of promotion. A poor performance e v a lu a tio n that directly results in denial of pay raise of any significance constitutes an a d v e rs e employment action. Gillis v. Georgia Dept. of Corrections, 400 F.3d 883, 884 (1 1 th Cir. 2005); McCabe v. Sharrett, 12 F.3d 1558, 1564 (11th Cir. 1994). In Gillis v. G e o rg ia Dept. of Corrections, the Circuit emphasized that the key inquiry is whether th e re is a loss of compensation. Id. at 887. There, Gillis would have received an a d d itio n a l $912.36 per year in compensation if her evaluation had stated that she e x c e e d e d expectations instead of meeting expectations. Id. at 888. H e re , Smiley worked at the same job he had before the disciplinary hearing, holds th e same title, received an "exceeds expectations" evaluation and earned the highest wage

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in c re a se allowable by ADOC policies. Plaintiffs have not introduced any evidence that S m iley's evaluation affected his pay raise. Indeed, the undisputed evidence before this C o u rt establishes that Smiley received a two-step pay increase on his anniversary date of A p ril 1, 2007, the maximum increase allowed by ADOC Personnel, and that ADOC re g u la tio n s do not prevent an employee from getting a promotion even with a reprimand. Therefore, no reasonable jury could find that Smiley's annual appraisal constituted an a d v e rs e employment action. b. Smiley's Claim of Alleged Retaliation D e f en d a n ts argue that Smiley is barred from asserting a Title VII claim for retaliatio n because he did not allege retaliation in his EEOC Charge of Discrimination. It is unclear from the Complaint whether Plaintiffs allege Defendants unlawfully retaliated a g a in s t Smiley. In addition, Plaintiffs do not respond to Defendants' arguments that S m iley's retaliation claim is procedurally barred and substantively insufficient in P la in tif f s' Response in Opposition to Defendants' Motion for Summary Judgment. (Doc. # 3 2 ) . Because the Court finds that Smiley has not alleged a retaliation claim and because S m ile y has made no attempt to present argument or evidence in support of such a claim, th e Court finds that judgment is due to be entered in favor of Defendants and against S m ile y on any claim of retaliation.

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2 . Braswell and Underwood's Title VII Claims a . Timeliness of Braswell and Underwood's Charge of Discrimination D e f en d a n ts argue that Braswell and Underwood failed to file their complaint w ith in ninety-days from the time each received their notice of right to sue from the E E O C . Pursuant to Title VII, a plaintiff must assert a civil action alleging a violation of th e same claim within ninety days of receiving a notice of right to sue from the EEOC. 42 U.S.C. § 2000e-5(f)(1). The ninety-day period commences upon the claimant's receipt o f his notice of right to sue. Id. Once a defendant contests whether a plaintiff filed his c o m p la in t within ninety days, the plaintiff has the burden of establishing that he met the f ilin g requirement. Santini v. Cleveland Clinic Fla., 232 F.3d 823, 825 (11th Cir. 2000). In Green v. Union Foundry Co., 281 F.3d 1229 (11th Cir. 2002), the Eleventh Circuit h e ld the district court properly granted the defendant's summary judgment where the p la in tif f filed his complaint ninety-seven days after the EEOC mailed his right to sue le tte r and where the plaintiff presented no evidence of his date of receipt. Id. Similarly, in Martinez v. United States Sugar Corp., 880 F. Supp. 773 (M.D. Fla. 1995), aff'd 7 F.3d 4 9 7 (11th Cir. 1996), the district court granted summary judgment to the defendant when th e plaintiff could not remember receiving the right to sue letter and filed suit ninety-five d a ys after the EEOC mailed the letter. Here, the EEOC mailed Braswell and Underwood their right to sue letters on or b e f o re June 4, 2007. (Doc. #26 Exs. 12, 14, 15). Plaintiffs filed this action on September

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1 4 , 2007 (Doc. #1), 102 days after the EEOC mailed the notice of right to sue to Braswell a n d Underwood. Plaintiffs have presented no evidence that Braswell and Underwood filed within the ninety-day requirement. Therefore, the Court finds that Defendants are e n t itle d to summary judgment on Braswell and Underwood's Title VII claims because th e y failed to commence this action within the statutorily proscribed time. 3 . Title VII Faragher Defense D e f e n d a n ts argue that Plaintiffs' Title VII claims cannot survive Defendants' F a r a g h e r defense. The Supreme Court recognizes that employers may assert an a f f irm a tiv e defense in Title VII sexual harassment cases when the employer took no ta n g ib le employment action and the employee failed to take advantage of administrative rem ed ies ("Faragher defense"). Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998); F a r a g h e r v. City of Boca Raton, 524 U.S. 775 (1998). Some courts have applied F a r a g h e r to racial harassment cases. See, e.g., Williams v. Multinamoh Educ. Serv. Dist., 1 9 9 9 WL 454633 (D. Or. 1999) (applying Faragher to racial harassment cases); Russell v . American Eagle Airlines, Inc., 46 F. Supp. 2d 1330 (S.D. Fla. 1999) (same). Defendants argue that they may assert a Faragher defense to Plaintiffs' discrimination a n d retaliation claims. Defendants fail to cite any authority that extends Faragher outside th e harassment context, nor has the Court been able to find such authority. Therefore, the C o u rt cannot find that the Faragher defense presents any basis on which to grant D e f e n d a n ts' Motion for Summary Judgment as to any of the remaining claims in this a c ti o n . 19

B . Section 1981 and Section 1983 Claims P lain tiff s seek recovery pursuant to Title VII, section 1981 and section 1983. In th is Circuit, Title VII, section 1981 and section 1983 claims have the same legal elements w h e n the claims are based on the same set of facts. See, e.g., Patterson v. McLean Credit U n io n , 491 U.S. 164 (1989); Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1275 n.5 (11th C ir. 2008); see also Richardson v. Leeds Police Dep't, 71 F.3d 801, 805-806 (11th Cir. 1 9 9 5 ). Because Plaintiffs' claims are based on the same facts, the Court's discussion of P la in tif f s' discrimination claims are the same whether the Court is considering Plaintiffs claim s pursuant to Title VII, section 1981, or section 1983. Consequently, the Court's e a rlie r discussion of Plaintiffs' Title VII claims applies to the Court's analysis of P la in t if f s ' section 1981 and section 1983 claims. 1 . Smiley's Section 1981 and Section 1983 Claims a . Smiley's Claims of Alleged Discrimination S m iley alleges Defendants discriminated against him on three occasions: (1) a w ritte n reprimand on May 23, 2006, (2) his shift transfers, and (3) an unjust employment e v a lu a tio n on January 4, 2007. The Court determined that no reasonable fact finder could f in d these incidents constitute an adverse employment action under Title VII. See supra S ec tio n V.1.a. Because the legal elements of Title VII, section 1981 and section 1983 are th e same, Defendants are entitled to summary judgment on Smiley's section 1981 and s e c tio n 1983 discrimination claims.

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b . Smiley's Claim of Alleged Retaliation T h e Court finds that judgment is due to be entered in favor of Defendants against S m ile y on any claim of retaliation because it finds Smiley has not alleged a retaliation c la im nor made any attempt to present argument or evidence in support of such a claim. See supra Section V.1.a. 2 . Braswell and Underwood's Section 1981 and Section 1983 Claims a . Braswell and Underwood's Claims of Alleged Discrimination T o make out a prima facie case of discrimination on the basis of race, a plaintiff m u s t show (1) he belongs to a protected class; (2) he was qualified to do the job; (3) he w a s subjected to adverse employment action; and (4) his employer treated similarly s itu a te d employees outside his class more favorably. See Knight v. Baptist Hosp. of M ia m i, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003). Defendants do not contend that B ra sw e ll and Underwood are not members of a protected class or that Plaintiffs are not q u a lif ie d for their jobs. Defendants argue that Braswell and Underwood cannot establish a prima facie case of race discrimination because none of Defendants' acts constitute a d v e rse employment actions and Plaintiffs cannot show Defendants treated similarly s itu a t e d employees outside Plaintiffs' class more favorably. The Court agrees. P la in tif f s claim Defendants unlawfully discriminated against Braswell and U n d e rw o o d for their statements at Smiley's hearing in violation of sections 1981 and 1 9 8 3 by transferring them to other facilities. Although Plaintiffs allege that the transfers re su lted in significantly longer commutes, loss of seniority status and loss of opportunity 21

to receive a pay raise or promotion, Plaintiffs did not present the Court with any such ev iden ce . Indeed, there is no evidence before the Court from which a reasonable jury c o u ld find that the transfers resulted in longer commutes, loss of seniority status or loss of o p p o rtu n ity to received a pay raise or promotion. Therefore, Braswell and Underwood's d is c rim in a tio n claim with respect to their transfers fail the third prong of a prima facie d is c rim in a tio n case. In addition, Plaintiffs' claim fails the last prong because Plaintiffs cannot establish th a t similarly situated Caucasian officers were treated differently. To determine whether e m p lo ye e s are similarly situated, the court evaluates "whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways." Rioux v . City of Atlanta, Ga., 520 F.3d 1269, 1280 (11th Cir. 2008) (quoting Maniccia v. Brown, 1 7 1 F.3d 1364, 1368 (11th Cir. 1999)). A comparator is an employee "similarly situated [ to the plaintiff] `in all relevant respects.'" Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1 0 9 1 (11th Cir. 2004) (quoting Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997)). The "`quantity and quality of the comparator's misconduct [must] be nearly identical to p re v e n t courts from second-guessing employers' reasonable decisions and confusing a p p le s with oranges.'" Burke-Fowler v. Orange County, Fla., 447 F.3d 1319, 1323 (11th C ir. 2006) (quoting Maniccia, 171 F.3d at 1368) (citation omitted). Misconduct merely " s im ila r" to the misconduct of the disciplined plaintiff is insufficient. Id. at n.2. H e re , a Caucasian employee, Donnie Brown, also provided a written statement at S m ile y's hearing and, unlike Braswell and Underwood, did not suffer disciplinary action 22

f o r his statement. Plaintiffs did not introduce any evidence regarding the content of B ro w n 's statements. Defendants presented evidence that Brown's statement included a sin g le accusation that a steward had failed to appear for his shift. In contrast, Braswell a n d Underwood's statements included accusations against several employees that could h a v e resulted in criminal charges. No reasonable fact finder could find that Brown, B ra sw e ll, and Underwood are similarly situated due to the material difference in the s ta te m e n ts . Braswell and Underwood's accusations were much more serious than B ro w n 's . Comparators "must be similarly situated `in all relevant aspects.'" Wilson, 376 F .3 d at 1091 (quoting Holifield, 115 F.3d at 1562). Because Plaintiffs are unable to e sta b lis h a prima facie case of discrimination with respect to Braswell and Underwood's tra n sf e rs , Defendants are entitled to summary judgment on Plaintiffs' race discrimination c l a i m s .3 b . Braswell and Underwood's Claims of Alleged Retaliation 1 . Retaliation for Complaints about Discrimination It is unclear whether Plaintiffs allege First Amendment retaliation or statutory re ta lia tio n pursuant to Title VII, section 1981, or section 1983 in their Complaint. (Doc.
3

Even if Plaintiffs had established a prima facie case of discrimination, Defendants offered convincing evidence that Allen had a legitimate non-discriminatory reason for transferring Braswell and Underwood to other facilities. Both had made unsubstantiated claims against their supervisor and a co-worker and Allen believed their transfers were in their best interests. It is not the court's role to second-guess the wisdom of an employer's decisions as long as the decisions are not racially motivated. Alexander v. Fulton County, Ga., 207 F.3d 1303 (11th Cir. 2000); Roja v. Florida, 285 F.3d 1339 (11th Cir. 2002). Because Plaintiffs failed to offer evidence from which a reasonable jury could find this legitimate non-discriminatory reason was a pretext for discrimination, Defendants are also entitled to summary judgment on this claim. 23

# 1 ). In Plaintiffs' Response in Opposition to Defendants' Motion for Summary Judgment (D o c . #32), Plaintiffs mention the McDonnell Douglas framework but also argue that " P la in tif f s' expressions are constitutionally protected by the First Amendment." 4 Section 1 9 8 1 prohibits an employer from retaliating against its employee in response to the e m p lo ye e 's complaint of race-based discrimination. See Andrews v. Lakeshore R e h a b ilita tio n Hosp., 140 F.3d 1405, 1412-13 (11th Cir. 1998). Section 1983 is the v e h ic le through which plaintiffs must pursue a section 1981 retaliation claim. See Butts v. C o u n ty of Volusia, 222 F.3d 891, 892 (11th Cir. 2000). Here, Plaintiffs do not provide support for a section 1981 retaliation claim nor do th e y introduce evidence that Defendants retaliated against Braswell and Underwood in re sp o n s e to their statements. The Court has carefully reviewed Braswell and U n d e rw o o d 's written statements.5 Even viewing the facts in a light most favorable to the P la in tif f s, no reasonable jury could find that Braswell or Underwood complained of raceb a se d discrimination. In short, based on the record before the Court, no reasonable fact f in d e r could find that Plaintiffs have established a section 1981 retaliation claim. Thus, D e f en d a n ts are entitled to summary judgment on any such claim to the extent it has been a s s e rt e d .
4

Plaintiffs continually confused First Amendment retaliation claims with Title VII retaliation claims in their briefs. For example, Plaintiffs argue that "[b]ecause such speech is protected by the First Amendment, Plaintiffs Braswell and Underwood have satisfied the requisite elements of their Title VII retaliation claims." The Court cannot agree with this analysis, and Plaintiffs provided no legal authority supporting this contention.
5

Plaintiffs failed to provide Braswell's oral testimony at Smiley's hearing. 24

2 . Retaliation for First Amendment Speech T h e Court will now address Plaintiffs' retaliation claim as a First Amendment c la im . In resolving a First Amendment retaliation claim, courts must use the Pickering b a la n c in g test to determine whether a government employer has unlawfully retaliated a g a in s t an employee. Pickering v. Bd. of Educ., 391 U.S. 563 (1968). The first step of th e Pickering analysis is to determine (1) if the government employee spoke as an e m p lo ye e or citizen, and (2) if the speech addressed an issue relating to a matter of public c o n c ern . D'Angelo v. School Bd. of Polk County, Fla., 497 F.3d 1203, 1209 (11th Cir. 2 0 0 7 ) (following Garcetti v Ceballos, 547 U.S. 410 (2006)). To qualify as c o n s titu t io n a lly protected speech in the employment retaliation context, the speech must b e made by a government employee speaking as a citizen and be on a subject of public c o n c e rn . See Phillips v. City of Dawsonville, 499 F.3d 1239, 1242 (11th Cir. 2007) (per c u ria m ) (concluding in a First Amendment retaliation case that the government employee "w as speaking in accord with her duty as the City Clerk and not as a private citizen"); V ila v. Padrón, 484 F.3d 1334, 1339 (11th Cir. 2007) (acknowledging after Garcetti that, to analyze a First Amendment retaliation claim for speech by a government employee, " [ t]h e threshold question is whether [the government employee] spoke as a citizen on a m a tte r of public concern"). This "inquiry is a practical one." Garcetti, 547 U.S. at 413. In Boyce v. Andrew, 510 F.3d 1333 (11th Cir. 2007), this Circuit held that plaintiffs' c o m p la in ts about workload, made through internal channels, were not protected by the F irs t Amendment because they were speaking as government employees about their jobs. 25

W h e n an employee speaks as an employee, then there can be no First Amendment issue a n d the constitutional inquiry ends without consideration of the Pickering test. Id. at 1 3 4 3 . "[T]he Pickering balance is not triggered unless it is first determined that the e m p lo ye e 's speech is constitutionally protected." Ferrara v. Mills, 781 F.2d 1508, 1 5 1 3 -14 (11th Cir. 1986). H e re , the threshold question is whether Braswell and Underwood made statements a s private citizens on a matter of public concern at Smiley's administrative hearing. "[T]he relevant inquiry is not whether the public would be interested in the topic of the s p e e c h at issue but rather is `whether the purpose of the plaintiff's speech was to raise is s u e s of public concern.'" Boyce, 510 F.3d at 1344 (quoting Maggio v. Sipple, 211 F.3d 1 3 4 6 , 1353 (11th Cir. 2000)). The court should examine the content, form, and context of th e speech to determine its "main thrust." Akins v. Fulton County, Ga., 420 F.3d 1293, 1 3 0 4 (11th Cir. 2005). "[W]hen a public employee speaks not as a citizen upon matters o f public concern, but instead as an employee upon matters only of personal interest, a b se n t the most unusual circumstances, a federal court is not the appropriate forum in w h ich to review the wisdom of a personnel decision taken by a public agency allegedly in re a ctio n to the employee's behavior." Connwick v. Myers, 461 U.S. 138, 147 (1983)). T h e record in this case reveals that the statements of Braswell and Underwood, w h ile intermingled with issues of ethics and ADOC management, were not intended to a d d re ss matters of public concern from the perspective of a citizen. Both Braswell and U n d e rw o o d prepared statements for Smiley's hearing, but only Braswell testified. The s ta te m e n ts were prepared for Smiley's benefit to bolster his good character. The hearing 26

w a s held pursuant to ADOC policies and was not an open forum. Indeed, Braswell and U n d e r w o o d ' s complaints were made exclusively through internal channels. Because B ra sw e ll and Underwood were not speaking as a private citizens, their speech is not c o n stitu tio n a lly protected. Therefore, there is no genuine issue of material fact, and D e f e n d a n ts are entitled to summary judgment on the retaliation claims. 3 . Section 1981 and 1983 Defenses D e f en d a n ts assert a variety of defenses to Plaintiffs' sections 1981 and 1983 c la im s , including qualified immunity, the Eleventh Amendment, and Mt. Healthy. Because Defendants' Motion for Summary Judgment is due to be granted, the Court will n o t address these issues. V I. CONCLUSION F o r the reasons set forth in this Memorandum Opinion and Order, the Court finds th a t Defendants are entitled to summary judgment on all of Plaintiffs' claims. Accordingly, it is hereby ORDERED as follows: (1) Defendants' Motion for Summary Judgment (Doc. # 24) is GRANTED; (2) All of Plaintiffs' claims are DISMISSED WITH PREJUDICE; (3 ) The trial and pretrial in this matter are CANCELLED; (4) The Court will enter a separate final judgment in favor of Defendants c o n s is te n t with this Memorandum Opinion and Order. DONE this the 19 th day of November, 2008.

/s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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