Adams v. The City of Montgomery - Maintenance Department
Filing
73
OPINION and ORDER directing that: (1) Defendant City of Montgomery's 19 motion for summary judgment is granted as to plaintiff Willie Adams's race-discrimination claims arising out of the August 7, 2007, denial of the SMW III position and the November 28, 2007, failure to promote to the truck-driver position; (2) Said motion is denied as to plaintiff Adams's race-discrimination claims arising out of the September 3, 2008, three-day suspension and all prior disciplinary actions t hat factored into that decision; (3) Said motion is granted as to plaintiff Adams's retaliation claims arising out his transfer to the ditch crew and the issuance of a counseling record on May 28, 2008; (4) Said motion is denied as to plaintiff Adams's retaliation claims arising out of his receipt of letters of reprimand on May 29 and August 7, 2008, and his suspension on September 3, 2008. These claims will go to trial. Signed by Honorable Judge Myron H. Thompson on 4/24/12. (Attachments: # 1 Civil Appeals Checklist)(scn, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
WILLIE ADAMS,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
THE CITY OF MONTGOMERY,
Defendant.
CIVIL ACTION NO.
2:10cv924-MHT
(WO)
OPINION AND ORDER
Plaintiff
Willie
discrimination
Adams
lawsuit
brings
against
this
defendant
employmentCity
of
Montgomery, Alabama, charging it with race discrimination
and retaliation in violation of Title VII (Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C.
§§ 1981a & 2000e-2000e-17) and § 1981 (the Civil Rights
Act of 1866, 42 U.S.C. § 1981, as enforced through 42
U.S.C. § 1983).1
Jurisdiction is proper under 42 U.S.C.
1. “[Section] 1983 constitutes the exclusive federal
remedy for violation by state actors of the rights
guaranteed under § 1981.”
Bryant v. Jones, 575 F.3d
1281, 1288 n. 1 (11th Cir. 2009).
§ 2000e-5(f)(3) and 28 U.S.C. § 1343.
before
the
judgment.
court
on
the
city’s
This cause is now
motion
for
summary
For the reasons that follow, the motion will
be granted in part and denied in part.
I.
SUMMARY-JUDGMENT STANDARD
Summary judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.”
Fed. R. Civ. P. 56(a).
The court must view the
evidence in the light most favorable to the non-moving
party and draw all reasonable inferences in favor of that
party.
Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).
II.
BACKGROUND
Adams, an African-American, first worked for the City
of Montgomery from September 2003 to August 2004.
After
a stint as a long-distance truck driver, he returned to
2
work for the city on August 10, 2007, as a Service
Maintenance Worker I (“SMW I”).
Because his gap in
municipal
years
employment
was
several
rehired as a temporary employee.
not
informed
that
he
was
long,
he
was
He states that he was
classified
as
a
temporary
employee when he was rehired.
Adams was assigned to the patch crew, which does
repair work on the city’s roads.
His supervisor was
James Ivey (white); the patch crew’s foreperson was Eric
Senderson
(black).
Adams
has
submitted
evidence
indicating that Ivey has frequently used racial slurs in
the workplace.
For several years, Adams has possessed a Class A
Commercial
Driver’s
License
(“Class
A
CDL”),
which
authorizes him to operate certain large construction
vehicles and tractor-trailers.
When he was rehired, he
told Senderson that he wanted to be a truck driver.
In
November 2007, a truck-driver position opened up due to
a retirement.
The position needed to be filled in
3
December 2007.
not promoted.
Adams applied for the position but was
Instead, on November 28, 2007, the City of
Montgomery hired Jeremy Jarrell (white),2 who possessed a
Class B CDL.
Although a Class A CDL allows the driver to
operate more types of vehicles than does a Class B CDL,
the truck-driver position requires only a Class B CDL.
According to the city, Adams was ineligible for the
truck-driver
position
temporary employee.
because
he
was
rehired
as
a
Adams responds that Jarrell had
resigned from municipal employment in August 2007.
But,
unlike Adams, Jarrell was eligible for re-employment as
a permanent employee because his separation period was
under two years.3
2. At various points in the record, Jarrell’s last
name is spelled “Jerrell.”
The court goes with the
majority of documents in the record and uses the
“Jarrell” spelling.
3. The city notes that Adams applied again for a
truck-driver position in April 2008.
The city has
submitted evidence showing that it requested additional
information from Adams but that he failed to respond.
Without this additional information, the city deemed
Adams’s application incomplete.
Adams, however, makes
(continued...)
4
On
January
questionnaire
14,
with
Commission
of
the
(“EEOC”).
allegation
2008,
race
Adams
Equal
The
filed
an
Employment
questionnaire
discrimination
in
Jarrell for the truck-driver position.
intake
Opportunity
details
the
hiring
the
of
Adams further
reports that he spoke with Tom Provitt, the Assistant
Director of the Maintenance Department, who informed him
that temporary employees could not be promoted to the
truck-driver position.
In February 2008, Adams moved from temporary to
permanent employment.
Because the city’s rules allow
temporary employees to serve for only six-months, the
shift to permanent status was necessary for Adams to keep
his job.
(...continued)
only a veiled reference to this failure to promote in his
brief’s retaliation section and under the heading “denied
promotion to Foreman.” Adams’s Brief (Doc. No. 37) at
31. During the pretrial conference on April 10, 2012,
Adams’s counsel limited the truck-driver claim to the
November 2007 incident.
5
On May 28, 2008, Adams was told that he was being
transferred to the ditch crew, which handles weed cutting
and
other
gardening
work
along
the
city’s
roads.
According to an Employee Counseling Record dated May 28,
Ivey stated that Adams was “not pulling [his] own weight”
on the patch crew.
Ivey specifically criticized Adams
for an incident on May 22, when Adams’s alleged laziness
resulted
in
other
workers
carrying
his
load
construction job taking longer than planned.
and
a
Employee
Counseling Record (Doc. No. 38-8) at 2.
Upon learning of this reassignment, Adams left work
to file an internal-affairs complaint alleging racial
discrimination.
His
internal
complaint
states
that
“discrimination put a man with Class A CDL on grass.”
Complaint Form (Doc. No. 38-2) at 2.
Thus, his internal
complaint focuses on his reassignment to the ditch crew.4
4. At times, Adams’s brief implies that the transfer
to the ditch crew happened after his complaint to
internal affairs.
While it appears true that the
effective date of the ditch-crew transfer occurred after
Adams’s complaint, the decision to transfer Adams was
(continued...)
6
The next day, on May 29, Adams was called in to meet
with Ivey and Kim McGough, the Administrative Officer for
the Maintenance Department.
Adams was handed the May 28
counseling record that detailed the May 22 incident that
precipitated his transfer to the ditch crew.
He was also
given a letter of reprimand for taking unapproved sick
leave the day before.
According to the reprimand letter,
he did not clock out for the day and failed to produce a
doctor’s note.
Of course, Adams was not on sick leave
the prior day; he had left work to file his internalaffairs complaint.
He states that he received permission
to leave work early from his supervisor, Sedrick Cross,
and that white employees have left work early without
disciplinary action being taken.
On June 13, 2008, Adams was promoted to Service
Maintenance Worker III (“SMW III”).
The city’s promotion
form states that Adams had “received his CDL license.”
(...continued)
made before he filed the complaint.
Indeed, the
internal-affairs complaint is premised on the ditch-crew
transfer.
7
Recommendation for Personnel Action (Doc. No. 19-13) at
1.
Adams, however, had his Class A CDL when he was
rehired in August 2007.
The city concedes that the
notation on the promotion form is inaccurate, but asserts
that Adams “could not receive commensurate payment while
classified
probation.”
as
a
temporary
employee
or
while
on
City’s Brief (Doc. No. 20) at 4-5 n.1.
On June 18, Adams filed a formal EEOC charge alleging
race discrimination. While he checked the box for only
race discrimination, his explanation also sets forth
retaliation allegations.
Adams stated in pertinent part
that:
“I am a Black male. I was rehired by
the above employer in August 2007 on the
asphalt crew with a six (6) temporary
status. In October, 2007, I contacted
my supervisor about a eighteen wheeler
truck drivers position when the current
employee holding the position retired at
the end of the month.
I was told to
give him a few days to get the paperwork
processed.
I have had a ‘Class A’
license required for the position since
2000 and have been driving a tractor
trailer since I left the company in
2000. In December 2007, a White male
8
without a ‘Class A’ license was rehired
by
the
employer
and
awarded
the
position. Since, then I have received
several unwarranted disciplinary actions
by the employer and the supervisor is
harassing me in the performance of my
job by trying to assign me work not in
my job. The harassment continues up to
this date, June 12, 2008.”
First EEOC Charge (Doc. No. 19-1) at 1 (emphasis added).
On August 7, 2008, Adams received a second letter of
reprimand for taking an unapproved absence on July 30
without a doctor’s note.
19-16) at 1.
Letter of Reprimand (Doc. No.
He states that he did not come to work
because a bad storm had caused trees to fall on his
property.
As a result of this letter of reprimand and
the May 28 and 29 disciplinary actions, he received a
three-day suspension without pay on September 3, 2008.
Id. at 1-4.
On October 23, 2008, Adams sent letters to Provitt
and Gail Gipson, Director of the Maintenance Department,
alleging race discrimination.
These letters were not
formal internal-affairs complaints, like the one Adams
9
had previously filed.
him
to
follow
up
Adams avers that no one contacted
on
these
letters
or
conduct
an
investigation.
On April 9, 2010, Adams filed a second EEOC charge.
This charge alleged, among other things, that Adams had
suffered retaliatory discrimination.
Finally,
on
October
29,
2010,
Adams
filed
this
lawsuit alleging race discrimination and retaliation.
III.
DISCUSSION
The city puts forward two arguments for summary
judgment.
First, the city contends that Title VII’s
statute of limitations bars the consideration of some of
the alleged unlawful employment practices.
Second, the
city believes it is entitled to summary judgment on the
merits.
The court addresses each argument as they apply
to the race-discrimination and retaliation claims.
10
A.
Race Discrimination
Adams identifies five racially motivated employment
actions: (1) the August 7, 2007, denial of the SMW III
position
when
he
was
rehired
by
the
city;
(2)
the
November 28, 2007, failure to promote to the truck-driver
position;
(3)
the
May
28,
2008,
Employee
Counseling
Record and ditch-crew transfer; (4) the May 29, 2008,
letter of reprimand; and (5) the August 7, 2008, second
letter of remand and the September 3, 2008, three-day
suspension without pay.
1.
Statute of Limitations
Title VII mandates that plaintiffs exhaust their
administrative remedies prior to filing suit in federal
court.5
“In a non-deferral state such as Alabama, the
deadline for filing [an administrative] charge is 180
days after the alleged discriminatory act.”
Zeigler v.
5. The city does not raise a statute-of-limitations
argument with regards to Adams’s § 1981 claims.
11
Alabama Dep’t of Human Resources, 710 F. Supp. 2d 1229,
1238 (M.D. Ala. 2010) (Albritton, J.).
The city argues that, because Adams filed his first
EEOC charge on June 18, 2008, any claim prior to December
21, 2007, is time barred.
Specifically, the city submits
that the hiring of Jarrell for the truck-driver position
in November 2007 is time barred.
Adams, however, filed
an EEOC intake questionnaire in January 2008.
If this
filing constituted a EEOC charge, then the truck-driver
claim would not be time barred.
Because Adams’s truck-driver claim would not be timebarred under § 1981 and because Adams fails to make out
a prima-facie case of race discrimination with regard to
the claim, the court declines to address the city’s
statute-of-limitations argument.
2.
Merits
Both Title VII and § 1981 “have the same requirements
of
proof
and
use
the
same
12
analytical
framework.”
Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1330
(11th Cir. 1998).
the
familiar
This case, therefore, is governed by
burden-shifting
analysis
of
McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under the
McDonnell Douglas framework, a plaintiff has the initial
burden of establishing a prima-facie case of unlawful
employment discrimination by a preponderance of evidence.
Id. at 802.
If the plaintiff establishes a prima-facie
case, the burden then shifts to the defendant to rebut
the
presumption
legitimate,
non-
discriminatory reason for its employment action.
The
defendant
has
by
the
articulating
burden
of
a
production,
not
of
persuasion, and thus need not convince the court that the
reason advanced actually motivated its action.
Once
the
presumption
of
defendant
satisfies
discrimination
plaintiff
has
the
evidence,
including
opportunity
the
is
this
burden,
eliminated
to
previously
come
Id.
and
forward
produced
“the
the
with
evidence
establishing the prima-facie case, sufficient to permit
13
a reasonable factfinder to conclude that the reasons
given by the [defendant] were not the real reasons for
the
adverse
employment
decision.”
Chapman
v.
AI
Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc)
(internal quotation marks omitted).
plaintiff
must
show
that
a
In other words, a
defendant’s
proffered
explanation is a mere pretext for discriminatory conduct.
The court now turns to Adams’s five claims.
SMW III Position:
cannot
establish
a
As the city points out, Adams
prima-facie
case
of
race
discrimination with regard to the city’s failure to hire
him in a SMW III position. Adams may establish a primafacie case of race discrimination in a number of ways,
including showing that (1) he is a member of a protected
class; (2) he was qualified and applied for the position;
(3)
he
suffered
an
adverse-employment
action
(for
example, he was rejected); and (4) an equally or less
qualified employee who was not a member of the protected
class was selected for the position.
14
Combs v. Plantation
Patterns, 106 F.3d 1519, 1539 n.11 (11th Cir. 1997).
Adams has not provided any example of a white individual
who was hired with a Class A CDL who was classified as a
SMW III.
Moreover, although Adams contends that Provitt
and Senderson both testified that it was the city’s
policy to automatically place individuals with Class A
CDLs in a SMW III position, their depositions do not
support this proposition. During Senderson’s deposition,
for example, the following colloquy ensued:
“Q: If Willie had his CDL, should he
have been classified as an SMW three?
“A: If that’s the way the rules read, he
should have been.
“Q: And you understood those were the
rules?
“A: I said if that’s the way the rules
was.”
Senderson
added).
that
Deposition
(Doc.
No.
39-5)
at
8
(emphasis
Adams has not produced any evidence indicating
the
individual
city
with
has
a
a
policy
Class
A
15
that,
CDL
is
upon
given
hiring,
a
SMW
an
III
position.
Thus, Adams has failed to establish a prima-
facie case with regards to his SMW III claim.
Finally,
Adams was simply not qualified for the position.
As the
city notes, it could not promote Adams to the SMW III
position until he became a permanent employee with the
city six months after his rehire.
In addition, even assuming Adams has established a
prima-facie case, the count must conclude that the city’s
contention that it could not promote him to SMW III until
he became a permanent employee is a legitimate, nondiscriminatory reason which he has not rebutted with
sufficient evidence.
Truck-Driver Position: Adams’s central claim is that
he should have been promoted to truck driver in November
2007.
Adams believes that the city engaged in race
discrimination when it hired Jarrell, a white former
employee who has only a Class B CDL.
The city responds that Adams cannot establish a
prima-facie case of race discrimination because he was
16
not qualified for the position.
Specifically, the city
points to the fact that Adams was a temporary employee
and, therefore, was ineligible for the promotion.
The
city’s personnel rules provide that an “employee may be
upgraded only after attaining permanent status and must
complete
a
total
of
six
(6)
employment with the department.”
19-4) at 6.
consecutive
months
of
City Rules (Doc. No.
Adams was rehired as a temporary employee
and had worked for the city for only around three and a
half months at the time the truck-driver position was
filled.
Adams retorts that Jarrell had also been separated
from city employment when was he hired as a truck driver.
The
city,
however,
distinguishes
between
re-hired
employees based upon their length of separation from
municipal employment: “A former or retired employee who
voluntarily separated in good standing may be considered
for re-employment and upon the employee’s request his/her
name shall be placed on the re-employment list(s).
17
Any
former employee who is re-employed more than two years
from
the
date
of
separation
will
be
required
to
successfully complete a six months probationary period.”
Id. at 4 (emphasis added).
Adams separated from city
employment in August 2004 and was rehired in August 2007,
a gap of three years.
Accordingly, Adams was required to
be rehired as a temporary employee and could not be
promoted during his first six months.
Jarrell had only
separated from city employment in August 2007 and was
eligible for re-hire as a permanent employee.
Affidavit (Doc. No. 19-8) at 2.
not
qualified
for
the
Montoya
Adams, therefore, was
truck-driver
position
when
he
applied in November 2007 and cannot establish a primafacie case of race discrimination.6
Disciplinary Actions: To establish a prima facie case
of discriminatory discipline, Adams must show that: “(1)
6. Additionally, the court notes the job posting for
the truck-driver position states that an applicant needs
to have one of three types of CDLs: Class A, Class B, or
Class B with tanker endorsement. Construction Equipment
Operator Job Posting (Doc. No. 19-6) at 9. Thus, Jarrell
was qualified for the position.
18
he belongs to a racial minority; (2) he was subjected to
adverse job action; (3) his employer treated similarly
situated
employees
outside
his
classification
more
favorably; and (4) he was qualified to do the job.”
Holifield v. Reno, 115 F.3d 1555, 1162 (11th Cir. 1997)
(per
curiam).
Adams
contends
that
the
following
disciplinaries were racially motivated: (1) the May 28,
2008, Employee Counseling Record and ditch-crew transfer;
(2) the May 29, 2008, letter of reprimand; and (3) the
August 7, 2008, second letter of remand and the September
3, 2008, three-day suspension without pay.
The city
makes two arguments as to why Adams has not made out a
prima-facie case with regards to the disciplinaries taken
against him.
The city contends that these disciplinaries are not
tangible-employment actions cognizable under the antidiscrimination statutes.
In Burlington Industries v.
Ellerth, 524 U.S. 742 (1998), the Supreme Court explained
that
a
“tangible
employment
19
action
constitutes
a
significant change in employment status, such as hiring,
firing,
failing
to
promote,
reassignment
with
significantly different responsibilities, or a decision
Id. at 761.
causing a significant change in benefits.”
Although context specific, a “tangible employment action
in most cases inflicts direct economic harm.”
762.
Id. at
Here, Adams was suspended for three days without
pay.
While
a
suspension
is
not
the
most
severe
punishment, it still qualifies as a tangible-employment
action.
Indeed, Adams suffered “direct economic harm.”
Id.
To
be
sure,
the
May
28
counseling
record
and
accompanying ditch-crew transfer, the May 29 reprimand,
and the August 7 reprimand might not, by themselves,
constitute
employment.
city’s
substantial
and
material
changes
in
his
However, because they factored into the
decision
to
suspend
actionable to that extent.
20
Adams,
they
are
also
Second, the city submits that Adams has failed to
provide
a
valid
comparator.
“Traditionally
...
a
plaintiff alleging discriminatory treatment was required
to show that ... a similarly situated employee who was
not a member of her protected class engaged in nearly
identical conduct and was not [disciplined].”
Herawi v.
State of Ala. Dep’t of Forensic Sciences, 311 F. Supp. 2d
1335, 1346 (M.D. Ala. 2004) (Thompson, J.).
plaintiff’s
burden
at
the
prima-facie
However, the
stage
is
not
onerous and “there are ways to raise the inference of
discrimination
other
than
showing
that
a
similarly
situated individual from outside the protected class was
treated differently.”
Id. at 1347.
“Accordingly, the
plaintiff’s failure to produce a comparator does not
necessarily
doom
the
plaintiff’s
case.
Rather,
the
plaintiff will always survive summary judgment if he
presents circumstantial evidence that creates a triable
issue concerning the employer’s discriminatory intent.”
Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th
21
Cir. 2011).
record,
“A triable issue of fact exists if the
viewed
in
a
light
most
favorable
to
the
plaintiff, presents a convincing mosaic of circumstantial
evidence that would allow a jury to infer intentional
discrimination by the decisionmaker.”
Id. (footnote and
internal quotation marks omitted).
In assessing whether there is adequate circumstantial
evidence of discrimination, a court must remember that
Title VII’s ambit is not limited to actions that are
solely motivated by racial animus.
amendments
practice
is
to
[Title
VII],
established
‘an
when
“Under the 1991
unlawful
the
employment
complaining
party
demonstrates that race ... was a motivating factor for
any employment practice, even though other factors also
motivated the practice.’ ...
[U]nder these amendments,
if the employee shows merely that race was a motivating
factor, he has established liability and thus may be
entitled to some relief.”
Hall v. Alabama Ass’n of
School Boards, 326 F.3d 1157, 1165 (11th Cir. 2003) (per
22
curiam) (citations omitted).
In other words, it is
enough if race was just ‘a’ motivating factor behind the
city’s decision to suspend Adams; race does not have to
be ‘the’ motivating factor.
Here,
Adams
has
produced
evidence
that
race
discrimination may have played a role in the May 28
counseling record and decision to transfer, disciplinary
actions which, as stated, factored into the three-day
suspension.
Adams has submitted substantial evidence
that his supervisor, James Ivey, frequently used antiblack racial slurs in the workplace and thus harbored a
racial bias against African-Americans.
Jeremy
Jarrell,
the
white
employee
who
For instance,
received
the
truck-driver position in December 2007, states that:
“After returning to work for the City of Montgomery in
December 2008, I have personally heard James Ivey use the
word ‘nigger’ in the work place on numerous occasions.
Since December 2008, I have heard Mr. Ivey use the word
‘nigger’ too many times to count.”
23
Ivey Affidavit (Doc.
No. 41-4) at 2.7
Adams has also tendered evidence dating
back to 1999 and 2000, when Ivey was the subject of
another EEOC discrimination charge filed by Angelo McLean
(black). McLean’s EEOC affidavit from that investigation
alleged that Ivey “frequently and openly called me a
‘Nigger’ over my obection during the time I was assigned
to the asphalt crew. ... Mr. Ivey called another black
employee, Chico Fletcher, ‘boy’, ‘stupid’, and ‘Mother
Fucker’.”
McLean Affidavit (Doc. No. 38-4) at 4.
Thus,
Adams has painted a picture in which race may have been
a motivating factor in the decision to suspend him, even
7.
The court notes that Jarrell’s affidavit says
December 2008 instead of December 2007 as the date
Jarrell was rehired.
The court assumes this is a
typographical error.
The city objects to the admission of Ivey’s affidavit
because it is unsigned. However, evidence is admissible
at the summary-judgment stage if it can be presented in
an admissible form at trial. Adams avers that Jarrell
will testify at trial. Adams further states that his
counsel interviewed Jarrell to prepare the affidavit and
that the lack of a signature is due to Jarrell’s recently
moving residences.
24
though other, non-discriminatory factors played a role as
well.
Adams has established a prima-facie case.
The
city
responds
that
it
issued
the
May
28
counseling form because Adams was not carrying his weight
on the asphalt crew.
The counseling form relies on
Ivey’s and Cross’s interpretations of Adams’s work ethic.
Adams has produced evidence to show that the city’s
proffered rationale is a pretext for race discrimination.
The May 28 counseling form was initiated and signed by
Ivey, who has a history of using racial slurs in the
workplace.
“[A]s a general rule, remarks that show bias
are particularly probative of discrimination when they
are made by the person charged with making the employment
decision.”
Herawi, 311 F. Supp. 2d at 1347.
Indeed,
Adams has produced evidence showing that Ivey has used
racial slurs from 1999 until at least December 2007.
Accordingly,
Adams
has
created
a
genuine
dispute
of
material fact as to whether the May 28 counseling record
was motivated by Ivey’s racial animus.
25
Because the
city’s progressive discipline policy factored the May 28
counseling record into the three-day suspension decision,
Adams has shown that a tangible-employment decision was
motivated, at least in part, by race discrimination.
Adams’s claim related to the September 3, 2008,
three-day suspension survives summary judgment.
Because
the city’s progressive discipline policy subsumed the May
28,
2008,
employee
counseling
form,
the
ditch-crew
transfer, the May 29, 2009 letter of reprimand, and the
August 7, 2008, letter of reprimand into the suspension
decision,
considered
those
at
disciplinary
trial.
actions
However,
Adams
will
has
also
be
failed
to
introduce sufficient evidence to raise a genuine dispute
of
material
fact
that
the
city
engaged
in
race
discrimination when it classified him as a SMW I in
August 2007 and failed to promote him to truck driver in
November 2007.
26
B.
Retaliation
Adams points to three examples of retaliation: (1)
the May 28 counseling record and transfer to the ditch
crew; (2) the May 29 letter of reprimand; and (3) the
August 7 second reprimand letter and the September 3
three-day suspension without pay.8
1.
Statute of Limitations
The city asserts that Adams’s second EEOC charge
starts the statute of limitations on his retaliation
claims.
According to the city, as the second charge was
filed on April 9, 2010, any claims of retaliation prior
to October 11, 2009, are time barred.
But the city looks to the wrong EEOC charge.
“The
starting point of ascertaining the permissible scope of
a judicial complaint alleging employment discrimination
8. Adams’s brief also mentions several failures to
promote to foreperson.
However, during the pretrial
conference on April 10, 2012, Adams informed the court
that these claims are being litigated in a separate case.
Adams, therefore, is not relying on these failures to
promote in this litigation.
27
is
the
administrative
charge
and
investigation.”
Robinson v. Regions Financial Corp., 242 F. Supp. 2d
1070, 1079 (M.D. Ala. 2003) (Thompson, J.).
As noted
above, Adams’s first EEOC charge contained an allegation
of retaliation.
After discussing the city’s hiring of
Jarrell for the truck-driver position, Adams states that:
“Since,
then
I
have
received
several
unwarranted
disciplinary actions by the employer and the supervisor
is harassing me in the performance of my job by trying to
assign me work not in my job.
The harassment continues
up to this date, June 12, 2008.”
First EEOC Charge (Doc.
No. 19-1) at 1.
The mere fact that Adams failed to check a box
labeled “retaliation” in his first EEOC charge does not
preclude
occurred
him
from
during
limitations.
raising
the
first
retaliation
charge’s
claims
statute
that
of
“Not all acts complained of ... need have
been included in the EEOC charge; rather, an employee may
include in her lawsuit a claim for injury resulting from
28
any practice which was or should have been included in a
reasonable investigative complaint.”
Robinson, 242 F.
Supp. 2d at 1079 (internal quotation marks omitted).
Moreover,
courts
often
treat
retaliation
claims
differently from other forms of discrimination because
the
EEOC
filing
itself
employer’s unlawful act.
University,
654
F.2d
can
be
the
impetus
for
the
Cf. Gupta v. East Texas State
411
(5th
Cir.
Aug.
28,
1981)
(holding that it is unnecessary to file a second EEOC
charge when the retaliation arises because of the first
EEOC
filing).9
Here,
given
the
allegations
of
“unwarranted disciplinary actions” in the first EEOC
charge,
(1)
retaliation
the
first
even
though
charge
the
essentially
retaliation
box
asserted
was
not
checked and (2) Adams’s claims of retaliation related to
his ditch-crew transfer and the letter of reprimand would
9. In Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir. 1981) (en banc), the Eleventh Circuit
adopted as binding precedent all of the decisions of the
former Fifth Circuit handed down prior to the close of
business on September 30, 1981.
29
have been uncovered by a reasonable investigation growing
out of the first charge.
Because Adams’s first EEOC charge determines the
statute of limitations on the retaliation claims, only
acts prior to December 21, 2007, are time barred.
Adams
has not alleged any retaliatory acts prior to this date.
2.
Merits
To make out a prima-facie retaliation claim under
Title VII, a plaintiff must establish: “(1) that she
engaged in statutorily protected expression; (2) that she
suffered an adverse employment action; and (3) that there
is some causal relation between the two events.”
Thomas
v. Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir.
2007) (per curiam).
Once a plaintiff establishes a
prima-facie
case,
legitimate,
non-retaliatory
employment action.”
“the
employer
reason
must
for
proffer
the
a
adverse
Olmsted v. Taco Bell Corp., 141 F.3d
1457, 1460 (11th Cir. 1998).
30
At the final stage of the
Title VII retaliation inquiry, “[t]he plaintiff bears the
ultimate burden of proving by a preponderance of the
evidence that the reason provided by the employer is a
pretext for prohibited, retaliatory conduct.”
court
concludes
that
there
are
genuine
Id.
disputes
The
of
material fact as to whether the May 29 and August 7
letters
of
reprimand
and
the
September
3
three-day
suspension constituted retaliation.
As noted above, on May 28, 2008, Adams was informed
that he was being transferred to the ditch crew. He
subsequently
left
work
to
file
an
internal-affairs
complaint alleging race discrimination.
The next day,
May 29, he was called into a meeting with Ivey (who had
a history of using racial slurs in the workplace and had
just been accused of race discrimination) and given a
letter of reprimand for taking unapproved sick leave
while
filing
his
internal-affairs
complaint.
It
is
undisputed that Adams engaged in statutorily protected
action (filing a complaint) and there is a close temporal
31
relationship between the complaint and the letter of
reprimand.
The
city
contends
that
summary
judgement
appropriate as to the May 29 reprimand letter.
is
First,
the city asserts that the letter does not constitute a
materially adverse-employment action.
For a retaliation
claim (unlike a race-discrimination claim), an employee
need not suffer an ultimate employment decision like
termination or failure to promote.
adverse-employment
action
is
Rather, a materially
one
that
“might
have
dissuaded a reasonable worker from making or supporting
a charge of discrimination.”
Crawford v. Carroll, 529
See also Burlington
F.3d 961, 974 (11th Cir. 2008).
Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 64
(2006)
(noting
provision,
unlike
that
the
Title
VII’s
substantive
“antiretaliation
provision,
is
not
limited to discriminatory actions that affect the terms
and conditions of employment”).
A reasonable employee
could have interpreted the letter and meeting as a stern
32
warning not to file future complaints.
that
Adams
has
established
a
The court finds
prima-facie
case
of
retaliation.
Next, the city responds that it had a legitimate,
non-discriminatory
reason
for
issuing
the
letter
of
reprimand: Adams violated municipal policy by taking sick
leave without a doctor’s note.
On this point, Adams has
created a genuine dispute about a material fact.
He
testified that he never claimed to be taking sick leave
and that his new supervisor, Cross, gave him permission
to
leave
work.
Adams
further
notes
that
employees
frequently take time off work without doctor’s notes and
are not disciplined for it.
The one-day gap between the
filing of the internal affairs complaint and the letter
of reprimand raises a strong possibility that the city’s
proffered
motive.
explanation
is
a
pretext
for
retaliatory
And, perhaps most significantly, unlike many
cases where an unrelated rules violation and subsequent
punishment form the basis of a retaliation claim, here
33
the city disciplined Adams for the time he took off from
work to file his internal-affairs complaint.
The causal
connection between the statutorily protected activity and
the materially adverse-employment action is, therefore,
particularly strong.
Because the August 7 reprimand letter is so similar
to and came so closely on the heels of the May 29 letter
(for which the evidence of retaliation is substantial),
the August 7 letter survives summary judgment as well.
Also, because the May 29 letter of reprimand factored
into the decision to suspend Adams for three days in
September 2008, the three-day suspension survives summary
judgment as well.10
Adams has, therefore, introduced sufficient evidence
to raise a genuine dispute of material fact that the city
engaged in retaliation when it issued the May 29 and
10. The court also notes the closeness-in-time
between Adams’s complaints–-May 29 to internal affairs
and June 18 to the EEOC-–and the initiation of the
process to suspend him, which started on August 7 and was
only finalized in September.
34
August 7 letters of reprimand and imposed the September
3 suspension.
However, the court’s holding does not
extend to the May 28 counseling record and decision to
transfer Adams to the ditch crew, for they were made
prior to the internal-affairs complaint and, therefore,
cannot form the basis of a retaliation claim.11
*
*
*
Accordingly, it is ORDERED that:
(1) Defendant City of Montgomery’s motion for summary
judgment (Doc. No. 19) is granted as to plaintiff Willie
Adams’s race-discrimination claims arising out of the
August 7, 2007, denial of the SMW III position and the
11.
Adams’s brief does not argue that the EEOC
intake questionnaire filed in January 2008 triggered the
retaliatory discrimination.
As such, that potential
argument is deemed waived.
See Johnson v. Andalusia
Police Dep’t, 633 F. Supp. 2d 1289, 1299 (M.D. Ala. 2009)
(Thompson, J.) (deeming claim not mentioned in party’s
brief to be waived); cf. Access Now, Inc. v. Southwest
Airlines, Co., 385 F.3d 1324, 1330 (11th Cir. 2004)
(“[T]he law is by now well settled in this Circuit that
a legal claim or argument that has not been briefed
before the court is deemed abandoned and its merits will
not be addressed.”).
35
November 28, 2007, failure to promote to the truck-driver
position.
(2) Said motion is denied as to plaintiff Adams’s
race-discrimination claims arising out of the September
3, 2008, three-day suspension and all prior disciplinary
actions that factored into that decision.
(3) Said motion is granted as to plaintiff Adams’s
retaliation claims arising out his transfer to the ditch
crew and the issuance of a counseling record on May 28,
2008.
(4) Said motion is denied as to plaintiff Adams’s
retaliation claims arising out of his receipt of letters
of reprimand on May 29 and August 7, 2008, and his
suspension on September 3, 2008.
These claims will go to
trial.
DONE, this the 24th day of April, 2012.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?