Adams v. The City of Montgomery - Maintenance Department
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
THE CITY OF MONTGOMERY,
CIVIL ACTION NO.
OPINION AND ORDER
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.
This cause is now
For the reasons that follow, the motion will
be granted in part and denied in part.
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
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
Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).
Adams, an African-American, first worked for the City
of Montgomery from September 2003 to August 2004.
a stint as a long-distance truck driver, he returned to
work for the city on August 10, 2007, as a Service
Maintenance Worker I (“SMW I”).
Because his gap in
rehired as a temporary employee.
He states that he was
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
indicating that Ivey has frequently used racial slurs in
For several years, Adams has possessed a Class A
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.
November 2007, a truck-driver position opened up due to
The position needed to be filled in
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
Adams responds that Jarrell had
resigned from municipal employment in August 2007.
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
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
Jarrell for the truck-driver position.
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
In February 2008, Adams moved from temporary to
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
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.
On May 28, 2008, Adams was told that he was being
transferred to the ditch crew, which handles weed cutting
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
construction job taking longer than planned.
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 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
While it appears true that the
effective date of the ditch-crew transfer occurred after
Adams’s complaint, the decision to transfer Adams was
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
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.”
made before he filed the complaint.
internal-affairs complaint is premised on the ditch-crew
Recommendation for Personnel Action (Doc. No. 19-13) at
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
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
Adams stated in pertinent part
“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
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
without a ‘Class A’ license was rehired
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
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
had previously filed.
Adams avers that no one contacted
On April 9, 2010, Adams filed a second EEOC charge.
This charge alleged, among other things, that Adams had
suffered retaliatory discrimination.
lawsuit alleging race discrimination and retaliation.
The city puts forward two arguments for summary
First, the city contends that Title VII’s
statute of limitations bars the consideration of some of
the alleged unlawful employment practices.
city believes it is entitled to summary judgment on the
The court addresses each argument as they apply
to the race-discrimination and retaliation claims.
Adams identifies five racially motivated employment
actions: (1) the August 7, 2007, denial of the SMW III
November 28, 2007, failure to promote to the truck-driver
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.
Statute of Limitations
Title VII mandates that plaintiffs exhaust their
administrative remedies prior to filing suit in federal
“In a non-deferral state such as Alabama, the
deadline for filing [an administrative] charge is 180
days after the alleged discriminatory act.”
5. The city does not raise a statute-of-limitations
argument with regards to Adams’s § 1981 claims.
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.
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
Both Title VII and § 1981 “have the same requirements
Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1330
(11th Cir. 1998).
This case, therefore, is governed by
Douglas Corp. v. Green, 411 U.S. 792 (1973).
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
discriminatory reason for its employment action.
persuasion, and thus need not convince the court that the
reason advanced actually motivated its action.
establishing the prima-facie case, sufficient to permit
a reasonable factfinder to conclude that the reasons
given by the [defendant] were not the real reasons for
Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc)
(internal quotation marks omitted).
In other words, a
explanation is a mere pretext for discriminatory conduct.
The court now turns to Adams’s five claims.
SMW III Position:
As the city points out, Adams
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;
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.
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
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
“A: I said if that’s the way the rules
Adams has not produced any evidence indicating
Thus, Adams has failed to establish a prima-
facie case with regards to his SMW III claim.
Adams was simply not qualified for the position.
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
Truck-Driver Position: Adams’s central claim is that
he should have been promoted to truck driver in November
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
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.
city’s personnel rules provide that an “employee may be
upgraded only after attaining permanent status and must
employment with the department.”
19-4) at 6.
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
Adams retorts that Jarrell had also been separated
from city employment when was he hired as a truck driver.
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).
former employee who is re-employed more than two years
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.
Adams, therefore, was
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.
he belongs to a racial minority; (2) he was subjected to
adverse job action; (3) his employer treated similarly
favorably; and (4) he was qualified to do the job.”
Holifield v. Reno, 115 F.3d 1555, 1162 (11th Cir. 1997)
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.
makes two arguments as to why Adams has not made out a
prima-facie case with regards to the disciplinaries taken
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
significant change in employment status, such as hiring,
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.”
Here, Adams was suspended for three days without
punishment, it still qualifies as a tangible-employment
Indeed, Adams suffered “direct economic harm.”
accompanying ditch-crew transfer, the May 29 reprimand,
and the August 7 reprimand might not, by themselves,
However, because they factored into the
actionable to that extent.
Second, the city submits that Adams has failed to
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].”
State of Ala. Dep’t of Forensic Sciences, 311 F. Supp. 2d
1335, 1346 (M.D. Ala. 2004) (Thompson, J.).
onerous and “there are ways to raise the inference of
situated individual from outside the protected class was
Id. at 1347.
plaintiff’s failure to produce a comparator does not
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
“A triable issue of fact exists if 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.
“Under the 1991
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
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.
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
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.
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.”
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
McLean Affidavit (Doc. No. 38-4) at 4.
Adams has painted a picture in which race may have been
a motivating factor in the decision to suspend him, even
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
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
though other, non-discriminatory factors played a role as
Adams has established a prima-facie case.
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
“[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
Herawi, 311 F. Supp. 2d at 1347.
Adams has produced evidence showing that Ivey has used
racial slurs from 1999 until at least December 2007.
material fact as to whether the May 28 counseling record
was motivated by Ivey’s racial animus.
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.
the city’s progressive discipline policy subsumed the May
transfer, the May 29, 2009 letter of reprimand, and the
August 7, 2008, letter of reprimand into the suspension
introduce sufficient evidence to raise a genuine dispute
discrimination when it classified him as a SMW I in
August 2007 and failed to promote him to truck driver in
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
Statute of Limitations
The city asserts that Adams’s second EEOC charge
starts the statute of limitations on his retaliation
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.
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.
Robinson v. Regions Financial Corp., 242 F. Supp. 2d
1070, 1079 (M.D. Ala. 2003) (Thompson, J.).
above, Adams’s first EEOC charge contained an allegation
After discussing the city’s hiring of
Jarrell for the truck-driver position, Adams states that:
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
“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
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).
differently from other forms of discrimination because
employer’s unlawful act.
Cf. Gupta v. East Texas State
(holding that it is unnecessary to file a second EEOC
charge when the retaliation arises because of the first
“unwarranted disciplinary actions” in the first EEOC
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.
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.
has not alleged any retaliatory acts prior to this date.
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.”
v. Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir.
2007) (per curiam).
Once a plaintiff establishes a
Olmsted v. Taco Bell Corp., 141 F.3d
1457, 1460 (11th Cir. 1998).
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.”
material fact as to whether the May 29 and August 7
suspension constituted retaliation.
As noted above, on May 28, 2008, Adams was informed
that he was being transferred to the ditch crew. He
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
undisputed that Adams engaged in statutorily protected
action (filing a complaint) and there is a close temporal
relationship between the complaint and the letter of
appropriate as to the May 29 reprimand letter.
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.
Rather, a materially
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
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
warning not to file future complaints.
The court finds
Next, the city responds that it had a legitimate,
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.
testified that he never claimed to be taking sick leave
and that his new supervisor, Cross, gave him permission
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
And, perhaps most significantly, unlike many
cases where an unrelated rules violation and subsequent
punishment form the basis of a retaliation claim, here
the city disciplined Adams for the time he took off from
work to file his internal-affairs complaint.
connection between the statutorily protected activity and
the materially adverse-employment action is, therefore,
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.
August 7 letters of reprimand and imposed the September
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
Adams’s brief does not argue that the EEOC
intake questionnaire filed in January 2008 triggered the
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.”).
November 28, 2007, failure to promote to the truck-driver
(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,
(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
DONE, this the 24th day of April, 2012.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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