Perry et al v. Alabama Alcoholic Beverage Control Board et al
MEMORANDUM OPINION AND ORDER directing that the Defendants' Motions for Summary Judgment are GRANTED, as further set out. Signed by Honorable Judge W. Harold Albritton, III on 9/23/13. (scn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
KESIA J. PERRY, VALENCIA AARON,
and STACY D. TAYLOR,
ALABAMA ALCOHOLIC BEVERAGE
CONTROL BOARD, JEFF ROGERS,
in his individual capacity, and JEAN
TURNER, in her individual capacity,
) CIVIL ACTION NO. 2:11-cv-464-WHA
MEMORANDUM OPINION AND ORDER
This case is before the court on three Motions for Summary Judgment filed by
Defendants Alabama Alcoholic Beverage Control Board (“ABC Board” or “Board”), Jeff
Rogers, and Jean Turner on June 28, 2013. The Plaintiff, Kesia Perry (“Perry”), filed a
Complaint in this case on June 14, 2011, bringing claims against the ABC Board and against Jeff
Rogers (“Rogers”) and Stan Goolsby (“Goolsby”) in their individual capacities. Perry amended
her Complaint to add Valencia Aaron (“Aaron”) as a plaintiff and Kenneth Davis (“Davis”), in
his individual capacity, as a defendant. A Second Amended Complaint (Doc. #6) was then filed
on June 30, 2011, adding Stacy Taylor (“Taylor”) as a plaintiff and Jean Turner (“Turner”), in
her individual capacity, as a defendant. In response to the Second Amended Complaint, the
Defendants filed a Motion to Dismiss (Doc. # 18), which the court granted in part and denied in
part, resulting in the dismissal of some of the plaintiffs’ claims and Goolsby and Davis as
defendants (Doc. #26). The remaining claims are: Count I – Perry’s race discrimination and
hostile environment claims against the ABC Board for violation of 42 U.S.C. § 2000e-2(a)(1)
(“Title VII”); Count II – Perry’s retaliation claim against the ABC Board for violation of Title
VII; Count V – Aaron’s race discrimination and hostile environment claims against the ABC
Board for violation of Title VII; Count VI – Aaron’s retaliation claim against the ABC Board for
violation of Title VII; Count IX – Taylor’s race discrimination and hostile environment claims
against the ABC Board for violation of Title VII; Count X – Taylor’s retaliation claim against
the ABC Board for violation of Title VII; Count XI – Taylor’s race discrimination and
harassment claim against Rogers and Turner for violation of the Fourteenth Amendment and 42
U.S.C. § 1981; and Count XII – Taylor’s retaliation claim against Rogers and Turner for
violation of 42 U.S.C. § 1981. The case is now before the court on three separate Motions for
Summary Judgment filed by the Board and by the individual Defendants. They seek summary
judgment on all remaining counts.
The court has federal question subject matter jurisdiction over these claims. See 28
U.S.C. § 1331.
For the reasons to be discussed, the Defendants’ Motions for Summary Judgment are due
to be GRANTED.
SUMMARY JUDGMENT STANDARD
Summary judgment is proper “if there is no genuine issue as to any material fact and . . .
the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986) (quotation omitted).
The party asking for summary judgment “always bears the initial responsibility of
informing the district court of the basis for its motion,” relying on submissions “which it believes
demonstrate the absence of a genuine issue of material fact.” Id. at 323. Once the moving party
has met its burden, the nonmoving party must “go beyond the pleadings” and show that there is a
genuine issue for trial. Id. at 324.
Both the party “asserting that a fact cannot be,” and a party asserting that a fact is
genuinely disputed, must support their assertions by “citing to particular parts of materials in the
record,” or by “showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to support the
fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). Acceptable materials under Rule 56(c)(1)(A) include
“depositions, documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory answers, or
To avoid summary judgment, the nonmoving party “must do more than show that there is
some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). On the other hand, the evidence of the non-movant must be
believed and all justifiable inferences must be drawn in its favor. See Anderson v. Liberty Lobby,
477 U.S. 242, 255 (1986).
After the nonmoving party has responded to the motion for summary judgment, the court
shall grant summary judgment 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).
Based on submissions of the parties, the following is an account of the relevant facts with
all justifiable inferences drawn in favor of the Plaintiffs:
The ABC Board’s Policies and Personnel Process
The Plaintiffs in this case were employees of the ABC Board. As an agency of the State
of Alabama, the ABC Board is subject to the rules and regulations of the State Personnel
Department (“SPD”). Both the SPD and the ABC Board have policies that prohibit
discrimination against any employee or applicant based on race. The ABC Board’s policy states
that any employee or applicant may file a discrimination complaint with the ABC Board. The
ABC Board also has a policy that requires employees to testify as needed in conjunction with
pre-discipline or grievance hearings. Any employee that refuses to testify or that harasses another
employee may be subject to discipline, including dismissal.
The SPD manages the recruitment and testing procedures for all of the ABC Board’s
merit-system jobs. A candidate seeking a job or a promotion must first submit an application for
examination with the SPD. If the candidate meets the job classification’s minimum
qualifications, the SPD either administers an examination or scores the candidate based on
experience. The SPD then prioritizes the candidate’s name on the job classification’s
hiring/promotion register according to the candidate’s score.
When the ABC Board has a job vacancy, the SPD provides the ABC Board with a
Certificate of Eligibles, made up of the top ten names, plus ties, from the hiring register. A
candidate may remove himself or herself from the register for any reason. In addition, a
candidate may be removed if he or she has noted a restriction, such as an unwillingness to move
to a particular geographic location.
To be eligible to receive a promotion, a candidate must 1) rank in the top ten, plus ties, of
the hiring register, 2) rank in the top half of the register and successfully perform the current job
classification at a higher level for more than three months (the “Upper 50 Rule”), or, 3) having
been unable to be in the top ten, plus ties, or the upper fifty percent of the register, perform the
job at a particular level for five years or more (the “Five Year Rule”). For promotion through the
Upper 50 Rule or the Five Year Rule, the employee’s position is analyzed for reallocation. For
reallocations, the ABC Board submits a position classification questionnaire to the SPD’s
Classification and Pay Division Manager. Using the questionnaire, the manager then decides
whether reallocation is warranted for the particular position. If the questionnaire is insufficient,
the SPD may require a desk audit to observe the job personally in making its decision.
Ultimately, the SPD’s Classification and Pay Division Manager makes the reallocation decision.
If reallocation is warranted, the employee is promoted to a higher classification. If reallocation is
unwarranted, the employee remains at his or her current classification.
When an employee is hired, his or her salary is usually set at the minimum for the
specified job classification. In special cases when it is deemed impossible to hire a desired
qualified person at the minimum rate, the ABC Board may recommend—and the SPD
Classification and Pay Division Manager may approve—a higher rate that matches the person’s
salary from his or her previous employment.
Plaintiff Kesia Perry
Plaintiff Perry, an African-American, was hired by the ABC Board on August 1, 2007 as
an Administrative Support Assistant II (“ASA II”), a position classified as responsible for filing
and retrieving documents and answering the telephone. After completing her probationary
period, she was assigned the duties of handling labels and sweepstakes authorization. Perry
consistently received excellent performance reviews, but, due to a merit raise freeze, she did not
receive a raise after her initial probationary period. After several months working as an ASA II,
Perry requested the opportunity to be promoted to an ASA III. Perry took the examination to
qualify for promotion and scored in Band 3. Based on this score, the SPD prioritized Perry in the
top half of candidates on the ASA III promotional register, but her score did not warrant placing
her in the top ten, plus ties.
In June 2008, the Chief of the Enforcement Division, Defendant Rogers, white, requested
a reallocation of Perry’s position. After reviewing the classification questionnaire and in order to
get more information, SPD sent a job analyst to perform a desk audit of Perry’s position. In a
letter dated July 3, 2008, SPD notified the ABC Board of its decision not to reallocate Perry’s
position. Specifically, the SPD stated that Perry’s job lacked the independent judgment and level
of responsibility of an ASA III. Mark Hatfield (“Hatfield”), the Enforcement Division Lieutenant
and Perry’s second-line supervisor, communicated the SPD’s decision to Perry. During this
discussion, he also told her that she took too many personal phone calls at work. In a subsequent
memo, the contents of which Perry disputes, Hatfield wrote that Perry became visibly angry over
the SPD’s decision and over Hatfield’s criticism of her work habits. He also noted that Perry
argued about her number of personal calls, stating that every ASA took the same number of
personal calls as she did. A few months later, in November 2008, Perry received high scores on a
performance appraisal prepared by Diane Sullivan (“Sullivan”), Perry’s direct supervisor.
In July 2009, Hatfield sent the Enforcement Division a memo regarding the chain of
command. On the same day, Sullivan sent Hatfield a memo recapitulating a meeting between
herself, Hatfield, and Perry. The memo noted that Perry complained of some coworkers’ “racist
attitude” toward her. Perry did not mention a specific individual in the meeting, and Hatfield
instructed her to report immediately any further racist conduct. In September 2009, Hatfield
prepared another memo describing a conversation with Perry about what she needed to do to be
promoted. In that memo, Hatfield wrote that Perry informed him that she no longer wished to be
promoted and that she would not take another ASA III examination. In October 2009, Sullivan
also wrote a memo describing a conversation she had with Perry concerning a promotion. In that
memo, Sullivan noted that Perry no longer wished to be promoted, that she would not retake the
examination, and that she wished her new assignments to be taken back. Perry disputes the
content of both memos, but it is undisputed that she never retook the examination. Perry also
contends that, although Hatfield told her she needed to rank in Band 1 of the register to receive a
promotion, this information was incorrect because she was eligible for promotion through the
Upper 50 Rule. In November 2009, Sullivan again gave Perry high scores on her performance
appraisal, noting that Perry had been assigned additional duties and was performing them
Early in 2010, Sullivan announced her retirement and Perry asked Hatfield and Rogers if
she could be cross-trained for Sullivan’s position. Soon after, Rogers requested another ASA II
through the SPD. Ultimately, the vacancy was filled by Rogers’ sister-in-law, Summer Childers
(“Childers”), a white woman. Childers did not negotiate her salary, but the ABC Board requested
that the SPD match Childers’ salary from her previous job with Colonial Bank. Perry argues that
Childers was thereafter assigned many of Sullivan’s duties despite Perry’s request for crosstraining. Hatfield, however, testified that Sullivan’s duties were either automated or distributed
to district lieutenants.
A few months after Childers was hired, Perry and Linda Flores (“Flores”), a white
coworker, reviewed their coworkers’ salaries online. Through their review, they learned that
Childers’ pay was more than twice Perry’s pay and that Childers’ pay was near the maximum
allowable for an ASA II. Early in May 2010, Perry complained to Goolsby and Rogers about the
pay discrepancy. At that time, Goolsby explained that the discrepancy was based on the salarymatching policy. Afterwards, Rogers told Hatfield to address Perry and Flores’s review of their
coworkers’ salaries. Hatfield counseled Perry, thus deciding not to discipline her formally.
Flores, on the other hand, was issued a written warning—the first step of the progressive
A few weeks later, Rogers told Perry that she was being transferred to the District 10
office. The transfer appears to have been Hatfield’s idea, purportedly suggested as a means to
position Perry for a promotion through more diverse and numerous job responsibilities. Perry
told her supervisors that she did not want to be transferred from the Central Office, but that she
would accept the transfer and do her best with the new assignment. Even though Rogers said that
the transfer was not punitive, he later wrote in an email requesting internet usage reports that he
had transferred Perry because of a “disgruntled/disciplinary issue.” (Pl. Ex. 22 at 1.) Once Perry
was transferred, the possibility of promotion was never mentioned to her.
Perry began dating Andy Lard (“Lard”), another African-American ABC Board
employee, in 2010. Lard was investigated and eventually arrested and indicted for taking seized
money from evidence. As part of the investigation, Perry was interrogated about her relationship
with Lard. Rogers sent an email to the entire enforcement division that instructed employees not
to speak to Lard, and Perry was asked to sign a document stating that she would not remove
documents from the ABC Board’s offices. Perry bailed Lard out of jail when he was arrested.
Perry believed that she was being followed during this period and that the investigation into her
relationship with Lard was racially motivated. Due to the investigation, she says she became
overwhelmed with stress and, on advice of her physician, she took medical leave on August 9,
On August 9, 2010, the same day that she took medical leave, Perry filed a Charge of
Discrimination with the Equal Employment Opportunity Commission (“EEOC”). In her charge,
she complained of race discrimination comprised of Childers’ higher pay, the involuntary
transfer to District 10, and the perceived harassment related to Lard. Perry also filed a grievance
with SPD, asserting racial discrimination comprised of the involuntary transfer to District 10 in
retaliation for complaining about the pay disparity. In this grievance, Perry alleged that
employees did not communicate their complaints to supervisors because they were afraid of
retaliation or termination. In addition, Perry stated that she expected to be retaliated against
because of the discriminatory atmosphere at the ABC Board.
Perry’s medical leave lasted until November 2010. When she returned to work, she was
transferred from District 10 to the Personnel Division at the Central Office. Goolsby became her
direct supervisor. Her position was classified as satisfying either an ASA I or ASA II level. Soon
after Perry began working again, the newly appointed ABC Administrator Mac Gipson
(“Gipson”), who replaced Emory Folmar (“Folmar”), met with Perry and encouraged her to drop
Perry filed her initial complaint in this case in June 2011. Beginning in July 2011, Perry
worked under Andy Knight (“Knight”). Knight had not supervised an employee for several
years. Nevertheless, Goolsby assigned Perry as Knight’s sole subordinate, stating that, due to
Perry’s claims, he needed a buffer and that any actions Goolsby took could be deemed
retaliatory. He instructed Knight to keep a close watch on Perry and to use progressive discipline
if necessary; Knight testified in his deposition that Goolsby stated that “[Perry] would either
hang herself or she would become so upset that she would quit.” (Pl. Ex. J at 22:19–22.)
Under Knight, Perry was responsible for working the switchboard and ensuring it was
properly staffed during breaks. Knight testified that communication problems between Perry and
her back-up switchboard operators led to instances where the switchboard was not manned. As a
result, Knight held a counseling session with Perry to discuss punctuality, cooperation with
coworkers, and compliance with the rules. Perry complained to Knight that her coworker, Linda
Caldwell (“Caldwell”), was difficult to work with and did not man the switchboard at the correct
time. Knight told Perry that he was not Caldwell’s supervisor but that he had been speaking with
Caldwell’s supervisor about the issue. Caldwell continued to cause problems for Perry, and Perry
testified that she ultimately lost interest in her position as a result.
During the course of her supervision under, first, Goolsby and, second, Knight, Perry
received two disciplinary actions: a written reprimand for tardiness and insubordination and a
suspension for violating leave policies and procedures. Very soon after Knight became Perry’s
supervisor, Goolsby recommended Knight issue the reprimand. Perry had called Goolsby and
said she would not be on time for work: her father had recently had a heart attack and she needed
to oversee transferring him to a new medical center. Perry was issued a reprimand for the stated
reason that she did not request authorization to be tardy.
On Knight’s recommendation, Perry was suspended from work for three days in January
2012 after failing to comply with the policies regarding leave. Perry was absent several days over
December 29, 2011 through January 5, 2012, causing Knight to have to personally fill in for her.
Before Perry left for her suspension, Knight asked her to draft a staffing schedule for the
switchboard for the days she would be absent. Perry did not complete the task before her
suspension. Knight characterized this behavior as insubordination, and when Perry returned on
January 18, 2011, she explained that she forgot to do it. After discussing the matter with Knight,
Perry briefly returned to her work station before walking off the job that morning. A few days
later, Goolsby sent Perry a letter stating that Perry’s actions constituted job abandonment and
voluntary resignation. On January 24, 2012, the ABC Board terminated Perry’s employment.
Knight testified that, after Perry was terminated, Goolsby and Rogers congratulated him.
Plaintiff Valencia Aaron
ABC Enforcement Agent Valencia Aaron, an African-American, submitted her first
application for employment to the ABC Board on October 25, 2004. She was first contacted for a
physical abilities examination on October 1, 2005. After declining an initial employment offer in
Mobile, Alabama, Aaron was appointed to an ABC Enforcement Agent position in Birmingham,
Alabama on December 20, 2005. She began work for the Board on January 21, 2006. She was
hired at a salary two steps above the minimum for the position, so as to match her pay at her
After Aaron was hired, she attended the ABC Academy in Selma, Alabama. While there,
she was required to qualify in using a handgun with which she had no experience. Aaron was
told during the Academy that someone did not want her to qualify, and Aaron believed this to
mean that Rogers and then-Administrator Folmar were against her. However, after training with
a white officer, she qualified with the handgun on her second attempt.
On April 7, 2006, Aaron received a job evaluation recommending that her probationary
status be extended. The stated reason for extending her probation was “to adequately observe,
document and appraise her performance in a manner fair to both her and the agency.” (Doc. #
129-11 at 3.) Specifically, her probation was extended because she lacked the necessary
certification for handling a firearm as an enforcement officer. On June 22, 2006, Folmar asked
the SPD to extend Aaron’s probationary period by three months, and the request was
Aaron attained permanent agent status on October 20, 2006. She continues to hold this
position today. On November 20, 2006, Aaron requested a transfer from Jefferson County to the
Drug Unit in Montgomery, Alabama to be closer to her husband and child. On March 17, 2007,
Rogers notified Aaron that her transfer request had been approved.
While at the Drug Unit, Aaron conducted undercover drug purchases. In addition, she
asked Captain Vance Patton (“Patton”), a white male, and Sergeant James Collins (“Collins”), an
African-American male, about serving as a trainer during this period. She was interested in a
trainer opportunity because of her experience as a trainer in the military. However, Collins only
responded that there was not an application for the training task force. Instead, Collins said that
trainers were simply selected. Patton never responded to Aaron’s inquiry.
Aaron notified Patton on June 13, 2008 that she was pregnant. She did not disclose her
pregnancy earlier due to concern that she would not be allowed to continue working. After
initially being told that she would not be allowed to perform light-duty work for the Board
during her pregnancy, Aaron was assigned to light-duty work with renewals. Her supervisor, on
orders of Rogers, kept close watch over Aaron’s productivity during this time. On October 1,
2008, Aaron was involuntarily transferred in the same building from the Drug Unit to the District
Ten Enforcement Office, also in Montgomery County. Aaron was transferred because her Drug
Unit salary was paid for by a federal grant that required her to do undercover drug work. Because
she was doing renewals and not drug work, her salary was no longer covered by the grant.
However, Aaron’s transfer became permanent.
On March 2, 2009, Aaron submitted an application for promotion to sergeant. Another
agent, Scottie Chandler (“Chandler”) was promoted to sergeant off of a Certificate of Eligibles
generated by the SPD on February 27, 2009, a few days before Aaron’s application. Aaron was
not on this Certificate of Eligibles. Darick Wilson (“Wilson”) was promoted from agent to
sergeant off of a Certificate of Eligibles generated on May 12, 2009. Neither Aaron nor any other
African-American agent was on the May 12, 2009 Certificate of Eligibles.
After he made complaints of corruption in the office, Aaron’s supervisor, Dennis Hill
(“Hill”), was removed from District Ten on October 23, 2009. His replacement, Defendant
Turner, white, “had a reputation as being the person who would terminate employees that Chief
Rogers wanted gone.” (Doc. # 132 at 17; Doc. # 128-1 at 580:5–16.) Soon after arriving in
District Ten, Turner told Aaron that she was not there to “get” Aaron. (Doc. # 128-1 at 580:14–
16.) Aaron believed this was a threat to two other African-American agents, Stephen McKitt
(“McKitt”) and Taylor.
Around the time Turner became supervisor, Agent Richard Holston (“Holston”), white,
was transferred to District Ten. Holston requested the transfer to be close to his grandmother,
who was ill. However, once he arrived, Holston told Aaron that Rogers and her main District
Ten supervisor, Lieutenant Davis, had instructed him to keep watch over Aaron. He also said that
he “knew people thought he was a ‘mole’ and there to ‘snitch’ on other employees.” (Doc. # 132
at 18; Doc. # 128-1 at 301:18–302:22.)
On May 29, 2010, the SPD issued a Certificate of Eligibles for an Enforcement Sergeant
position. The ABC Board intended to promote a new Enforcement Training Coordinator
(“ETC”) through this sergeant position. On the Certificate, both Aaron and Jason Roberts
(“Roberts”), a white male, were ranked in Band Two. However, Roberts, and not Aaron, was
chosen. The Board says it chose Roberts because of his extensive firearms training experience.
By her admission, Aaron lacked Roberts’ level of firearms training and experience. To Rogers,
firearms training experience was critical for a person who would oversee other firearms training
instructors. On June 2, 2010, Aaron was notified that she was not selected for the sergeant
On August 9, 2010, while on FMLA leave prior to knee surgery, Aaron traveled with
Perry to the EEOC office to fill out an intake questionnaire. Aaron’s intake questionnaire
indicated that she was denied promotion to Roberts’ position on the basis of her race and sex.
(Doc. # 101-23 at 1.) That same day, she filed a Charge with the EEOC containing the same
allegations. (Doc. # 131-4 at 3.) On August 10, 2010, Aaron filed a grievance with the SPD
alleging race discrimination. The EEOC notified the Board of Aaron’s Charge on August 12,
After filing her Charge, and while still on FMLA leave, Aaron says she noticed several
instances of ABC surveillance in her neighborhood. She also says that she saw an ABC agent
following her during a shopping trip. She testified in deposition to being afraid that the ABC
Board might poison her office water bottle or take some other action to hurt her.
During Aaron’s FMLA leave, Davis completed a performance review of Aaron. The
appraisal contained lower scores than prior evaluations but still stated that Aaron met standards.
Aaron only saw the contents of this review after receiving her personnel file in preparation for
her SPD hearing. According to Goolsby, Davis had a deadline for submitting the completed
appraisal to the SPD. (Doc. # 101-28 at 17:11–15.)
On September 28, 2010, Roberts sent an email to the entire Enforcement Division
soliciting interested candidates to apply for a training instructor position. Aaron did not respond
to this request. Prior to Aaron’s complaints, no procedure existed whereby interested persons
could apply to become training instructors.
After returning from FMLA leave and her knee surgery, Aaron was assigned twice to
work football games at a store in Auburn, Alabama. Aaron argued against the assignment for
several reasons. First, it put unnecessary strain on her knee. Second, she had done two game
assignments prior to taking leave to ensure that she would not have to do that work after her
surgery. Finally, she identified at least one white agent who had not done any game assignments
by that time. Regardless, Collins told Aaron that Davis was requiring Aaron to do the
assignments to make up for missed work during her leave.
Aaron also noticed at this time that Davis was returning her and another AfricanAmerican agent, Stephen McKitt’s, paperwork with multiple red marks. Some of the criticisms
noted by Davis were instances where Davis was incorrect. Collins at one point researched and
printed multiple examples of instances where Davis had made mistakes in his paperwork.
According to Aaron, Davis would never return paperwork to two white agents, Jeremy Peterson
(“Peterson”) and Craig Shook (“Shook”), despite serious errors. (Doc. # 128-1 at 315:7–21.)
The SPD held a hearing on Aaron’s grievance on December 16, 2010. The next day,
Davis held a meeting with the District Ten agents and announced a list of policy changes.
Among those changes was a requirement that all personnel be finished with breakfast by 8:00
A.M. A few days before, Davis had seen McKitt and Aaron having breakfast together in the
break room. Despite several times in the past when Davis had seen Holston, Shook, Peterson,
and another white agent, Mark Barber (“Barber”), eating breakfast in the break room and said
nothing, Davis told Aaron and McKitt that they would no longer be able to have breakfast
together. To Aaron, Davis’ new policy was another example of harassment.
On January 7, 2011, Aaron attended the normal District Ten meeting. During the
meeting, Davis asked everyone to express their opinions on how the office was being run. In
response, Aaron told Davis that she thought his actions were retaliatory. The next day, January 8,
2011, Rogers sent an email to Davis stating that Aaron was being disruptive and that her conduct
in the workplace was making other employees uncomfortable. Later that day, Rogers announced
his intent to have Aaron “written up” for her actions. (Doc. # 131-5 at 22.) A final counseling
form was submitted on January 21, 2011. Aaron submitted a rebuttal on January 26, 2011 that
stated she did not consider her actions disruptive.
On January 10, 2011, Davis sent out an email to all District Ten enforcement personnel
announcing a new physical training policy. In the past, agents could use time at the beginning or
end of his or her shift to work out. Aaron and McKitt were the only two agents who used the
morning and afternoon time slots. Under the new policy, agents were barred from using those.
On June 14, 2011, Kesia Perry filed the initial Complaint in this case. On June 20, 2011,
the Complaint was amended to add Aaron as a plaintiff. On July 21, 2011, Rogers, through his
attorney, sent an email to Aaron concerning interviews for a vacant sergeant position. The email
instructed Aaron to respond in writing if she was not interested in the position. On August 1,
2011, Rogers sent Aaron another email reminding her that she needed to respond in writing if
she was not interested in an interview. On August 3, 2011, Aaron responded that she was not
interested in interviewing for the position. In her email, Aaron wrote that it was her “belief that
due to the present and past treatment, interviewing and accepting this position would only enable
exploitation [of her] probationary status.” (Doc. # 131-5 at 46.) Rogers responded later that day
and said that Aaron’s fears of being exploited were unfounded.
During this same timeframe, two sergeants of unspecified races were promoted to
lieutenants. The two sergeants were first named acting supervisors of their respective districts on
July 14, 2011. Then, on August 31, 2011, the two sergeants were announced as having been
promoted permanently to lieutenant.
On November 10, 2011, Aaron, Holston, and another white agent, Gary Humphrey
(“Humphrey”), answered a call and made five arrests related to a series of thefts in District Ten.
Although Aaron made the arrests, Humphrey and Holston were given equal credit. Aaron
received a letter of praise for her undercover work. Humphrey and Holston were promoted
On December 1, 2011, the Board announced that Collins was promoted to lieutenant and
three white agents had been promoted to sergeant positions. On December 5, 2011, Lieutenant
William Carson (“Carson”) announced to all of the District Ten agents that they would have the
opportunity to perform sergeant-level duties. As explained in a December 6, 2011 email, the
opportunity was intended to expose interested persons to the sergeant position; participation
would not lead to an enhanced chance of promotion. On January 17, 2012, Captain John
Richardson (“Richardson”), an African-American, sent an email to the Enforcement Division
soliciting applications to provide security for the Speaker of the Alabama House of
Representatives. Aaron did not apply for this position because it was a part-time position
assisting an ABC sergeant.
On January 31, 2012, Aaron requested FMLA leave for lower back pain. Her request was
granted. On March 1, 2012, Carson asked if Aaron could return to work to help with
applications. On March 19, 2012, Aaron gave Carson a return-to-work form that prohibited her
from heavy lifting. On March 20, 2012, Goolsby wrote to Carson and explained that light-duty
assignments were not available unless the injury occurred on the job. That day, Aaron requested
that the ABC Board complete a job injury report so that SPD Risk Management could evaluate
whether Aaron’s injury occurred on the job. On April 6, 2012, Risk Management determined that
the injury was not work-related.
On April 10, 2012, Goolsby sent Aaron a letter stating that her FMLA leave would be
exhausted on April 23, 2012. The letter was a form letter sent to all employees whose FMLA
leave was nearly exhausted, and it said that Aaron could either request an extension of her leave
or she could resign. On April 15, 2012, Aaron sent Goolsby an email claiming that his and the
Board’s refusal to allow her to work light-duty assignments was retaliation.
On July 16, 2012, Carson announced that Holston had been promoted to sergeant in
District Ten. Following the announcement, Carson sent an email to Richardson on July 17, 2012
that said there had been opposition to Holston’s promotion. Richardson met with District Ten
personnel on August 13, 2012 and explained the promotion process. In a memo he wrote on
August 13, 2012 to describe the meeting, he noted that everyone in “the group said their previous
concerns [had] been discussed and worked out with [Sergeant] Holston and [that] they [would]
support him as their immediate supervisor.” (Doc. # 131-8 at 20.)
Aaron states that throughout 2011, Holston harassed her. As evidence of this, Aaron
points to “the ‘grievance’ letter he sent to Lieutenant Davis on August 23, 2011.” (Doc. # 132 at
44.) In that letter, Holston complains that he believes Aaron and McKitt are given less work than
white agents and that McKitt, especially, “is allowed to do anything and everything he wants
with no recourse.” (Doc. # 131-8 at 42.) In addition, Holston notes that he had “expressed [his]
concern and disapproval to [Sergeant] Collins on several occasions when other agents were
present,” but that Collins had done nothing in response. (Id.) There is no indication that Holston
was investigated or disciplined for having complained to Collins in the presence of other agents.
Finally, on October 29, 2012, in response to an email from Rogers reminding everyone
that they could not take adverse actions against McKitt or Aaron, Holston wrote a memorandum
to his file that discussed two interactions between himself and Aaron. First, Aaron was scheduled
to work at a store in Auburn on October 17, 2012. That morning, Collins contacted Holston
because Aaron had not arrived at her assigned store. Holston then contacted Aaron and told her
that Collins was looking for her. Second, Holston contacted Aaron about a payment request on
October 29, 2012. Holston believed the payment request should have been higher than what
Aaron had reported. According to Holston, “Agent Aaron was noticeably aggravated at being
questioned.” (Doc. # 131-8 at 24.) As part of that conversation, Holston “checked the agents
manual and discovered that there is no standard, but that agents need to have their payment
amounts approved.” (Id.) During this discussion, Holston felt threatened by Aaron.
Plaintiff Stacy Taylor
ABC Enforcement Agent Stacy Taylor, an African-American, was hired by the
ABC Board on January 19, 2007, with an effective date of March 1, 2007. He was working as a
Montgomery County Deputy Sheriff at the time he was hired. His first appointment was to the
ABC Board’s District Three office located in Birmingham, Alabama. While in Birmingham,
Taylor believed he experienced a racist atmosphere. He was the only African-American in that
office at the time. The other agents would split into separate work details and would exclude
him, and they would not include him in any after-work social activities. Ultimately, Taylor
discussed his exclusion with the other agents, and they began to include him.
In September of 2007, Taylor requested a transfer to District Thirteen, the drug unit of
the ABC Board based in Montgomery. The request was addressed to Rogers, Assistant Director
of ABC Enforcement at that time. A few days later, Rogers denied Taylor’s request because the
Board was not accepting transfers to the drug unit. In his denial, Rogers encouraged Taylor to
reapply when the Board sent notice that it was accepting transfer requests. However, the Board
never sent notice for transfers until after Taylor had left the ABC Board.
A few weeks after his initial request for a transfer, in late September, Taylor sent a new
request, but this time for District Ten in Montgomery. Taylor cited an ongoing divorce and the
need to be close to his children as reasons for the request. Taylor subsequently followed up with
another request for a transfer to District Ten on October 5, 2007. Finally, Taylor again requested
a transfer to the drug unit on December 17, 2007. Rogers never responded to any of these
In early January, 2008, Chief Roy Houlton transferred Taylor from Birmingham to
District Ten in Montgomery. In June, the Board placed a GPS device on another AfricanAmerican agent’s state-issued car. That agent, Stephen McKitt, told Taylor that Taylor’s stateissued car was being tracked with a GPS device as well. Another African-American employee at
the Central Office, Anthony Thornton, also told Taylor that his car was tracked with a GPS
device. The Board admits that it put a GPS device on McKitt’s car but denies having put a device
on Taylor’s car.
On July 10, 2008, Taylor sent yet another request to Rogers for a transfer to the drug unit.
The next day, Taylor’s supervisor, Lieutenant Dennis Hill, forwarded Taylor’s request to Rogers
along with a note in support of the transfer. Taylor was never transferred to the drug unit.
While in District Ten, Taylor’s assigned area focused mostly on Bullock County.
According to Taylor, the county has few licensees or applicants due to local poverty and sparse
population. In addition, Taylor says that problems in his area further decreased because his
thoroughness in inspections led to widespread compliance. Finally, Taylor at one point
maintained a field office in a strip mall in the county. The office was old and musty, and it did
not have a telephone. Ultimately, a business owner called and said the office was no longer
available to the ABC Board. Despite this, Taylor says that he performed all of the duties
expected of him in Bullock County while also helping other agents with their investigations and
During his time at District Ten, Taylor was assigned to drive an Alabama state senator
and an ABC Board captain. Both the senator and the captain are African-American. Taylor
complained of the senator assignment to Hill, but Hill responded that the African-American
senator wanted an African-American agent to drive him.
In December 2008, Taylor was assigned to work in the ABC Board warehouse for one
week. Warehouse assignments are undesirable; they are hot and dirty. Hill assigned Taylor to the
warehouse as discipline for Taylor’s low statistics. Taylor argued that his statistics were fine; he
was ranked in the middle of all agents statewide. However, the Board argues it made its decision
based on the number of cases Taylor made prior to that point. Based on this statistic, Taylor was
at the bottom of the statewide agent rankings.
Taylor complained to Hill that the assignment was based on race. Hill communicated this
concern to the Central Office, but Taylor was assigned to the warehouse anyway. While working
in the warehouse, a white agent refused to allow Taylor access to the office or to a golf cart used
for riding around the warehouse. Taylor saw white agents using the golf cart on numerous
occasions, but he never saw African-American agents using the golf cart.
On February 5, 2009, Goolsby requested that white agents Chandler and Wilson’s
positions be reallocated from agent to sergeant. The SPD approved these reallocations on
February 27, 2009 and a Certificate of Eligibles was created. Chandler was on this certificate, but
Wilson did not meet the minimum requirements because he had not worked with the Board long
enough. On March 2, 2009, Taylor submitted an application for promotion to sergeant. On May
11, 2009, Chandler was notified of his promotion to sergeant. On May 12, 2009, a new
Certificate of Eligibles was generated that listed Wilson. That same day, Wilson was notified of
his promotion to sergeant. No African-Americans, including Taylor, were on either Certificate of
On June 3, 2009, Taylor was involved in an incident concerning his ex-wife, a
Montgomery Police Officer, and his girlfriend. His girlfriend, a Montgomery County Sheriff’s
Deputy, went to his ex-wife’s home and demanded to know whether the ex-wife had been seeing
Taylor. After leaving, the girlfriend returned to Taylor’s home, brandished her weapon, and
demanded Taylor come outside. Taylor verbally reported this incident to Hill, his immediate
supervisor, and to his girlfriend’s supervisor at the Sheriff’s Department. Despite this report,
Internal Affairs, through Captain Vance Patton, began an investigation. Patton did not contact
Hill but instead received notice of the incident through Captain Richardson. Richardson had
discovered the incident from the Montgomery County Sheriff’s Department. After a subsequent
interview, Patton noted that “Taylor could not provide a reason he did not notify his supervisors,
although Agent Taylor did notify [his girlfriend’s] supervisor.” (Doc. # 137-35 at 2.)
At first, the Administrator wanted a five-day suspension as discipline. Patton disagreed
with the Administrator and suggested a three-day suspension. According to Patton, Rogers spoke
with the Administrator on Taylor’s behalf and convinced the Administrator to give Taylor a twoday suspension. In memoranda from both Patton and Rogers, the ultimate disciplinary action
recommended was a two-day suspension. Taylor states that he informed Rogers of his report to
Hill; he does not mention whether he informed Patton. Finally, Taylor implies that he accepted
the suspension based on another African-American sergeant’s recommendation. (Doc. # 137-13
¶ 27.) The other sergeant warned Taylor that, “if [Taylor] fought the suspension, [Rogers and
Patton] might get mad and fire [Taylor].” (Id.) Ultimately, on June 10, 2009 Taylor received
notice of a two-day suspension, and he declined a hearing into the matter. (Doc. # 137-38 at 2.)
On October 23, 2009, Defendant Turner replaced Hill as the District Ten supervisor.
Turner had a reputation for terminating employees that Rogers or the Administrator wanted
removed. Shortly after arriving, Turner and Lieutenant Davis discussed the number of cases on
which Taylor had been working.
On November 9, 2009, a white sergeant noted a small dent on Taylor’s state-issued car’s
door. Taylor had not noticed the dent prior to that moment. Subsequently, Taylor wrote a brief
memorandum stating that he had not noticed the dent nor had he any idea as to how the dent
occurred. On November 18, 2009, Taylor received a written warning for failing to maintain his
On December 8, 2009, Turner asked Taylor to meet with her and two others about
Taylor’s case files. In the meeting, Turner told Taylor that he was not performing his job
correctly and that he would be transferred to Dothan. In Dothan, there were fewer licensees, and
he would be supervised more closely to ensure he did his job properly. Turner reviewed Taylor’s
statistics with him. The statistics showed that Taylor had made few cases during Hill’s tenure as
supervisor. Despite this, Turner did not contact Hill to inquire about Taylor’s work performance.
Furthermore, Turner rejected Taylor’s protests concerning the financial hardships attendant to
moving to Dothan. After the meeting, Rogers agreed to Taylor’s transfer. Rogers then sent a
letter to Taylor on December 11, 2009 confirming the transfer to Dothan with an effective date
of February 1, 2010.
The day after meeting with Turner, Taylor completed an EEOC intake questionnaire. The
EEOC received the questionnaire on December 15, 2009. Two days later, the EEOC sent
Goolsby a notice that Taylor had filed a grievance related to alleged race discrimination. No
details of the grievance were disclosed, and Goolsby stated that he did not disclose the notice to
anyone other than the Administrator and a few people on his legal staff. There is no cited
evidence that Rogers or Turner knew of this notice from the EEOC.
Taylor submitted a letter of resignation on January 25, 2010. In that letter, Taylor stated
that he was resigning from the ABC Board because of financial hardship related to his pending
transfer to Dothan. Thereafter, the District Ten agents met and convinced Taylor to rescind his
letter of resignation. The agents then met with the supervising lieutenant, Davis, and asked him
to intervene on Taylor’s behalf. Davis sent an email to Rogers stating that the agents wished
Rogers to reconsider Taylor’s transfer. Rogers responded that Taylor’s decision to resign was
personal and that Taylor had not discussed any financial hardships with him. Taylor made one
telephone call to Rogers which Rogers did not answer. Taylor did not send any emails, did not
call multiple times, and did not attempt to communicate in any other way with Rogers. Taylor
finished that work week and his employment ended.
As early as February 3, 2010, Goolsby requested that Davis prepare a memorandum
recounting the events surrounding Taylor’s resignation. Davis complied and sent Goolsby an
email containing his statement. Of particular note, Davis stated that he encouraged Taylor to
speak with Rogers directly about the transfer. Taylor specifically disputes that Davis ever
suggested he speak with Rogers at any time. (Doc. # 137-13 ¶48.)
After his employment with the ABC Board ended, Taylor filed his first Charge with the
EEOC on February 18, 2010. In this Charge, he alleged race discrimination, with the most recent
discrimination occurring on December 8, 2009. (Doc. # 137-62.) He filed an Amended Charge
on October 5, 2010. In this Amended Charge, he alleged continuing race discrimination and, for
the first time, retaliation. (Doc. # 137-71.)
Title VII prohibits an employer from discriminating “against any individual with respect
to his compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex or national origin.” 42 U.S.C. § 2000e-2(a)(1). The
Supreme Court in McDonnell Douglas Corp. v. Green provided the traditional framework for
evaluating cases where, as here, a plaintiff only offers circumstantial evidence in support of his
or her retaliation and discrimination claims. Under this framework, the plaintiff must establish a
prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973). After the plaintiff has established a prima facie case of discrimination, the burden of
production is placed upon the employer to articulate a legitimate, nondiscriminatory reason for
its employment action. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). Once
the employer has met this “exceedingly light” burden, the “plaintiff must demonstrate by a
preponderance of the evidence that the employer had a discriminatory intent.” Meeks v.
Computer Assocs. Int’l, 15 F.3d 1013, 1019 (11th Cir. 1994). The plaintiff may seek to
demonstrate that the proffered reason was not the true reason for the employment decision
“either directly by persuading the court that a discriminatory reason more likely motivated the
employer or indirectly by showing that the employer’s proffered explanation is unworthy of
credence.” Id. at 256; Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997). A
plaintiff's prima facie case, combined with sufficient evidence to find that the employer's
asserted justification is false, may permit the trier of fact to conclude that the employer
unlawfully discriminated. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 147 (2000).
That is, even if a plaintiff establishes a prima facie case and offers sufficient evidence of pretext
as to each of the proffered reasons, summary judgment “will sometimes be available to an
employer in such a case.” Chapman v. AI Transp., 229 F.3d 1012, 1025 n.11 (11th Cir. 2000).
A. Kesia Perry’s Claims
Plaintiff Kesia Perry (Perry) sets out two separate general claims for relief in her Second
Amended Complaint. Although Perry’s counts are vague, this court has gleaned the following
causes of action from Perry’s Second Amended Complaint.
1. Count I
In Perry’s first count of her Second Amended Complaint, entitled “Plaintiff Kesia Perry’s
Claims of Race Discrimination against the ABC Board (State of Alabama) in Violation of Title
VII”, she alleges that she “has been discriminated against on the basis of her race in violation of
Title VII in promotions, pay, job and work assignments, discipline, evaluations, transfers and in
all other terms and conditions including a hostile environment because of racial harassment by
her employer, the ABC Board.” (Doc. 6 ¶ 184.) For the following reasons, the ABC Board’s
Motion for Summary Judgment on Perry’s first count is due to be GRANTED.
a. Perry’s Promotion Claim
1. Perry’s promotion claim is time-barred.
For a court to consider a Title VII claim, “a plaintiff must first file an administrative
charge with the EEOC within 180 days after the alleged unlawful employment practice
occurred.” Pijnenburg v. W. Ga. Health Sys., Inc., 255 F.3d 1304, 1305 (11th Cir. 2001) (citing
42 U.S.C. § 2000e-5(e)(1)). A filing with the EEOC is “a requirement that, like a statute of
limitations, is subject to waiver and estoppel.” Zipas v. Trans World Airlines, Inc., 455 U.S. 385,
393 (1982). One area where “strict compliance with Title VII[’s filing requirement] is
unnecessary is where the plaintiff has filed a charge with the EEOC, but in her judicial action the
plaintiff raises related issues as to which no filing has been made.” Wu v. Thomas, 863 F.3d
1543, 1547 (11th Cir. 1989). “Judicial claims which serve to amplify, clarify, or more clearly
focus earlier EEO complaints are appropriate,” while “[a]llegations of new acts of
discrimination, offered as the essential basis for the requested judicial review[,] are not
appropriate.” Id. (internal quotation omitted). As such, “[t]he proper inquiry […] is whether [the
plaintiff’s] complaint was like or related to, or grew out of, the allegations contained in [his or]
her EEOC charge.” Gregory v. Ga. Dep’t of Human Res., 355 F.3d 1277, 1280 (11th Cir. 2004).
The purpose of the exhaustion requirement is to allow the EEOC priority in effecting voluntary
compliance and conciliation between the parties. Id. at 1279.
Perry’s promotion claim is time-barred. The alleged failure to promote her from ASA II
to ASA III occurred in May 2008, but the first EEOC charge was not filed until August of 2010.
A charge must be filed within 180 days of the alleged unlawful employment practice. 42 U.S.C.
§ 2000e-5(e)(1). Because Perry has not pointed to any reason why the filing requirement should
be tolled or otherwise waived for her failure to promote claim, and because the claim was not
filed until two years later, this claim is barred.
Even if this claim were not time-barred, however, there are other reasons that the claims
2. Perry has not shown that she was qualified for a job for which the employer
was seeking applicants.
Even if Perry’s promotion claim were not time-barred, she has failed to show an
intentional failure to promote. To state a prima facie case of intentional discrimination in a
failure to promote case, the plaintiff must demonstrate “1) that she belongs to a protected class;
2) that she was qualified for a job for which the employer was seeking applicants; 3) that, despite
her qualifications, she was rejected; and 4) that, after her rejection, the employer continued to
seek applicants or filled the position with a person outside of the plaintiff’s protected group.”
Gaddis v. Russell Corp., 242 F. Supp. 2d 1123, 1135 (M.D. Ala. 2003). At issue here are the
second and fourth elements of the prima facie case.
Perry was not qualified for a job for which the ABC Board was seeking applicants. It is
undisputed that an ABC Board employee is promoted in one of three ways. First, through taking
a test, an employee may place in the top ten of persons eligible for a position, including ties for
any of the top ten spots. These persons are included in a list turned over to the hiring supervisor
in order to help with the decision and are automatically eligible for promotion. Second, any
employee in the top fifty percent of test-takers can be promoted after three months in a position,
following a reallocation evaluation by the SPD. If the SPD determines that an upgrade of an
employee’s current position is unwarranted, then there would not be any chance for an employee
under this rule to be promoted. Finally, and regardless of where the employee is on the test-taker
list, an employee who has served five years or more at a particular position is eligible for
promotion following a reallocation evaluation.
In this case, Perry took the relevant test but failed to place in the top ten. Instead, Perry
placed in the top fifty percent and was told that she should retake the examination to improve her
chances. Despite this advice, Perry never retook the examination. Thus, in order to be qualified
for a promotion, Perry had to either pursue a reallocation or remain in her position for at least
five years and request a reallocation at that time. It is undisputed (a) that Perry’s supervisors
requested a reallocation, but that the SPD (not the ABC Board, as Perry argues in her reply brief)
determined that an upgrade was unwarranted, and (b) that Perry had not worked in her position
for at least five years. Thus, based on the available promotion process, Perry was not qualified
for the ASA III job because she was not eligible for a promotion. Thus, Perry cannot meet the
requirements for a prima facie case for failure to promote.
3. Perry has not shown that, after her rejection, the ABC Board either continued
seeking applicants or filled any position with someone outside of Perry’s
The ABC Board next argues that Perry has not shown that the ASA III position Perry was
seeking was either filled with someone outside of Perry’s protected class or that the ABC Board
continued seeking applicants for the ASA III position after rejecting Perry. In Perry’s brief, she
does not mention any other person who received an ASA III position. Instead, it is undisputed
that the only person mentioned, Childers, remains an ASA II with the Board. Perry’s conclusion
that Childers has been kept in an ASA II position as a strategic move in response to this case is
irrelevant to her racial discrimination claim: Perry has not shown that someone outside of the
protected class has been promoted. Furthermore, there is no indication that there was a specific
ASA III opening available in the Central Office. Rather, the potential for a promotion appears to
have been a general possibility available to Perry. Thus, there is no indication that the Board
continued to seek applicants for an ASA III position for which Perry had been rejected. Thus,
Perry fails to establish the fourth element of the prima facie case.
4. Perry has not shown the ABC Board’s legitimate, nondiscriminatory reason
for failing to promote her to be pretextual.
The Board offers the legitimate, nondiscriminatory reason that Perry was not promoted
because she did not fit into any of the categories for promotion. This business protocol is a
legitimate, nondiscriminatory reason that is generally applicable to all ABC employees.
A plaintiff may demonstrate that a defendant’s reasons for not promoting were pretextual
by revealing “such weaknesses, implausibilities, inconsistencies, incoherencies or contradictions
in the defendant’s proffered legitimate reasons for its actions that a reasonable factfinder could
find them unworthy of credence.” Cooper v. Southern Co., 390 F.3d 695, 725 (11th Cir. 2004),
cert. denied, 546 U.S. 960 (2005) (quoting Combs, 106 F.3d at 1538). However, a reason is not
pretext for discrimination “unless it is shown both that the reason was false, and that
discrimination was the real reason.” Brooks v. Cnty. Comm’n of Jefferson Cnty., 446 F.3d 1160,
1163 (11th Cir. 2006) (quoting St. Mary’s Honor Ctr., 509 U.S. at 515, 113 S. Ct. 2742)
(emphasis in original).
In response to the Board’s articulated reason, Perry argues that “the ABC Board made
every little move necessary to get [two other employees, Chandler and Wilson] promoted from
agent to sergeant and on to lieutenant in a little more than one year.” (Doc. 120 at 34.) Moreover,
Perry argues that “[t]he fact that Rogers and Goolsby continued to mislead Perry and give her
false encouragement suggests intentional discrimination and is also evidence of pretext.” (Doc.
120 at 33.) However, Perry has failed to argue how these actions by the Board, even if true,
amounted to a bypassing of the typical promotion scheme for employees. In other words, Perry
has not shown that these actions allowed Chandler and Wilson to be promoted despite not
meeting one of the three promotional criteria. Furthermore, Perry has not argued different
treatment for herself in this regard. While Perry does say that the Chief personally delivered
Chandler and Wilson’s applications to the SPD, Perry does not provide evidence that this was
what got the other employees their jobs or that the Chief did not help Perry in other ways to get
her a promotion. Rather, Perry even admits that she had been encouraged by the Chief to take the
ASA III test. (Pl. Ex. A at 92:15–17.) Finally, she presents no evidence showing that Rogers and
Goolsby continued to mislead Perry. Specifically, she does not present any evidence that, had
she taken the test and scored in the top ten plus ties, she still would not have been eligible for
promotion to an available ASA III position.
While seemingly confusing a claim for disparate pay with a claim for failure to promote,
Perry discusses whether the Board’s reason for failing to promote Perry was pretext in her
discussion of disparate pay. In that section, Perry argues that she can demonstrate pretext
because “(1) the ABC Board was able to assign job duties which would have resulted in a
promotion, (2) Perry requested additional duties during her first few years as an employee, (3)
the ABC Board declined to assign Perry those job duties until Sullivan announced her plan to
retire, (4) the ABC Board hired Childers and gave Sullivan’s job duties to Childers, and (5)
Rogers, Goolsby and Hatfield either misrepresented or, in Hatfield’s case misunderstood, what
Perry needed to do to get a promotion.” (Doc. 120 at 36.) While it is undisputed that the Board
could have assigned additional duties so that a desk audit of Perry’s position would have been
more favorable for a promotion, Perry has failed to show what job duties, besides Sullivan’s, she
requested or whether the Board actively rejected her requests. Furthermore, the evidence
indicates that Sullivan’s jobs were not reassigned to Childers; rather, the duties associated with
that position were either automated or distributed throughout the districts. (Pl. Ex. D at 168:4–
Finally, there is no indication that Rogers, Goolsby, or Hatfield misrepresented or
misunderstood the requirements to get a promotion. For Perry to be eligible for an automatic
promotion, she needed to score better on the test. If she were to receive a promotion through a
reallocation, then her supervisors were frank in telling her that a reassignment to District Ten
would allow her new opportunities to advance. Thus, these arguments for pretext fail.
Perry also argues pretext on the basis of a prior incident where an agent had voluntarily
removed his name from the top ten register in order to allow another agent to be promoted from
below. Immediately after voluntarily removing his name from the list and allowing the lower
person to be promoted, the higher person requested that his name be returned to the list. Without
this method, the lower person would not have been reachable for a promotion. Goolsby testified
that this action was a personal decision and that it had happened in the past.1 Perry argues that
this shows race discrimination because both of the agents were white. In addition, Perry infers
that the lieutenant took his name off the list as a favor to then-ABC Administrator Folmar and
Rogers at the time. However, even accepting this as true, Perry does not connect this scheme to
race discrimination: she has not produced any evidence indicating that the lieutenant’s actions
allowed a white agent to be promoted over an African-American agent. There could be any
Goolsby testified that he had in fact received his promotion through this method. (P. Ex. I at
number of reasons why Folmar and Rogers wanted the one to be promoted, and Perry has not
shown any evidence of race discrimination. Thus, this argument for pretext fails as well.
Finally, Perry highlights the short period of time in which the two white sergeants were
promoted to lieutenant. In her argument, Perry points out that, at least with one of the two
persons, the Administrator wanted Goolsby to deliver a reallocation request to the SPD
immediately. Furthermore, Perry points to Goolsby’s testimony that the two persons were at the
bottom of the top ten plus ties while an African-American man was at the top of the list. Finally,
Perry argues that “[t]he application [for Perry that Goolsby] submitted […] necessitated a desk
audit while the submissions for [the other two employees] did not.” (Doc. 120 at 39.) Once
again, however, Perry does not connect any of this with racial animus on the part of the Board,
nor does she show how promotion decisions with sergeants relate to promotion decisions with
administrative assistants. All Perry shows is that, in following its normal Top Ten Plus Ties
protocol for promotions, the Board chose the last spot on the list for promotion instead of the top
spot. Perry has not provided evidence that all of the other candidates were African-American,
meaning that whites could also have been disadvantaged, nor has she shown that the only reason
the top candidate was not chosen was his race. Finally, Perry has not shown how Goolsby’s lack
of enthusiasm affected her failure to receive a promotion. The SPD came to Perry’s office and
did a personal desk audit of Perry’s position. The SPD subsequently made its own, separate
determination that Perry’s job did not warrant reallocation to an ASA III position. There is no
indication of any involvement with this process by the ABC. Thus, Perry has failed to offer such
inconsistencies as to rebut the Board’s legitimate, nondiscriminatory reason for failing to
promote Perry. Neither has Perry shown any evidence of a valid comparator to her being treated
differently for racial reasons in regard to promotion eligibility.
Because Perry has failed to rebut the Board’s legitimate, nondiscriminatory reason,
Perry’s claim for failure to promote fails.
b. Perry’s Disparate Pay Claim
“To state a prima facie case of intentional discrimination in compensation, a plaintiff
must establish that (1) she belongs to a racial minority; (2) she received low wages; (3) similarly
situated comparators outside the protected class received higher compensation; and (4) she was
qualified to receive the higher wage.” Cooper v. Southern Co., 390 F.3d 695, 734–35 (11th Cir.
For the purposes of its Motion for Summary Judgment alone, the ABC Board concedes
that Perry has established a prima facie case for intentional discrimination in compensation.
However, the Board argues that its policy of matching employees’ salaries when they switch to a
job with the ABC Board is a legitimate, nondiscriminatory reason for providing different
compensation. The court agrees. Because the ABC Board has met its light burden in arguing a
legitimate, nondiscriminatory reason for paying Childers more than Perry, the burden shifts to
Perry to establish an issue of fact as to whether the Board’s excuse was merely pretextual.
Perry has not succeeded in showing that the Board’s salary matching is pretext for
discrimination. Although Perry has shown that the salary matching policy had not been used with
some other ASA applicants before Childers, she has not provided evidence of similarly situated
whites who were unemployed at their time of hire but who received a higher than minimum
starting salary. Moreover, the Board’s summary of salary matches shows that the first salary
match undertaken by the Board for an applicant from outside the state system was to one of the
plaintiffs in this case, Taylor, an African-American male, one year prior to the next salary match.
This general application of the salary matching policy, without any evidence of similarly situated
whites receiving more favorable treatment, discredits Perry’s allegations of discrimination.
Furthermore, the ABC Board argues that it applied its salary matching policy to Childers and not
to Perry, thus accounting for the disparity in pay, because Perry was unemployed when she
received her position while Childers was employed. Because Perry admits that she was
unemployed at the time she interviewed for and received her job, Perry cannot show that the
Board’s decision not to apply salary matching in her case was false. She had no existing salary to
match. Finally, Perry makes a great deal of the fact that Childers is Rogers’ sister-in-law. Even
if further evidence could show that the reason provided by the Board was somehow false, that
alone would not prove that the real reason was racial animus. Instead, additional evidence would
be required to show race discrimination instead of nepotism or simple personal preference.
Reeves, 530 U.S. at 147. Thus, Perry has not shown that the salary matching reason is pretextual,
and her claim must fail. Therefore, the Board’s Motion for Summary Judgment on the disparate
pay claim is GRANTED.
c. Perry’s Claims on Evaluations, Assignments, Discipline, and Transfers
Perry has alleged that she received different evaluations, assignments, discipline, and
transfers on account of her race. To establish a prima facie case, Perry must show that 1) she
belongs to a protected class; 2) she was subjected to an adverse employment action; 3) her
employer treated similarly situated employees outside her classification more favorably; and 4)
she was qualified to do the job. McDonnell Douglas Corp., 411 U.S. at 802. The Board does not
contest Perry’s assertion that she is in a protected class nor that she was qualified to do the
1. Perry’s new job and work assignments do not constitute adverse employment
actions for purposes of the prima facie case.
“[T]o prove adverse employment action in a case under Title VII’s anti-discrimination
clause, an employee must show a serious and material change in the terms, conditions, or
privileges of employment.” Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir.
2001) (emphasis in original). The employee’s subjective view does not control; rather, “the
employment action must be materially adverse as viewed by a reasonable person in the
Perry does not seem to allege that she has been saddled with unwanted job or work
assignments. Rather, the converse appears to be true: that Perry, in an effort to get promoted,
requested new duties; that, while at first her request to receive some of Sullivan’s duties was
honored, over time those duties were taken from her; and that those duties that were taken from
her were reassigned to Childers. In sum, it would appear that the material adverse employment
action arguably arises from the Board’s attempting to neutralize Perry by minimizing her
assignments, not from an attempt to burden Perry with unwanted tasks.
Perry has not demonstrated the serious and material change in the terms, conditions, and
privileges of her employment resulting from her new assignments that is necessary for a Title
VII claim. Davis, 245 F.3d at 1239. All Perry has done is allege that the assignments were based
on discrimination; she has not identified any evidence of how her job was seriously and
materially changed. Moreover, she has failed to refute evidence she herself provided that
Sullivan’s duties were either automated or distributed to district lieutenants. (Doc. # 120 at 13;
Doc. # 121-4 at 168:2–169:1; see also Doc. # 121-4 at 103:13–104:10, 146:15–19.) Because the
only evidence identified by either party suggests that Perry would not have received or kept
those duties regardless of Childers’ employment, Perry has not shown a material adverse
employment action. Thus, Perry’s prima facie case for assignment discrimination fails.
2. Perry’s transfer to District Ten does not constitute an adverse employment
As discussed, adverse employment actions are examined according to how a reasonable
person would view the action, not how the employee subjectively perceives the action. Id.
Without this requirement, “‘every minor or even trivial employment action’ would constitute
grounds for a discrimination suit.” Smith v. Ala. Dep’t of Pub. Safety, 64 F. Supp. 2d 1215, 1221
(M.D. Ala. 1999) (quoting Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996)).
“Furthermore, a lateral transfer that results in no loss in pay, benefits, or classification does not
generally constitute an adverse employment action.” Id. (determining that a transfer from
Montgomery to Selma was not an adverse employment action). “[I]f the court were to hold that
lateral transfers were tantamount to adverse employment actions anytime an employee was
displeased with his or her transfer, ‘[t]he Equal Employment Opportunity Commission, already
staggering under an avalanche of filings too heavy for it to cope with, would be crushed, and
serious complaints would be lost among the trivial.’” Id. at 1222 (quoting Williams v. Bristol–
Meyers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996)) (internal quotations omitted).
Perry has not shown that the Board’s decision to transfer her to District Ten constituted a
material adverse employment decision. Rather, it is undisputed that the transfer placed Perry into
a position that consisted of similar job duties as her prior position at the Central Office. It is also
undisputed that Perry’s new position in District Ten placed Perry closer to her home and her
children’s school, thus shortening her commute time. Further, Perry’s supervisors testified that
the transfer would place Perry in a better position for a promotion. Specifically, the District Ten
position was one in which the ABC Board and SPD had found potential for an ASA III position.2
Because the transfer was lateral and did not result in a “loss in pay, benefits, or classification,”
the transfer was not an adverse employment action. Moreover, because Perry has only stated that
she personally preferred to be at the Central Office, but that she made the best of her new
position in her continuing search for a promotion, Perry has not shown that the transfer was an
adverse employment action from an objective standpoint. Thus, Perry’s prima facie case for
disparate treatment with the transfer must fail.
3. The Board’s written reprimand does not constitute an adverse employment
As discussed, an employment decision must result in a serious and material change in the
conditions, terms, or privileges associated with employment. Davis, 245 F.3d at 1239. The
results must be serious and material in the eyes of a reasonable person; the plaintiff’s subjective
view is not controlling. Id
In this case, the reprimand did not result in any change to Perry’s terms, conditions, or
privileges of employment. Rather, the reprimand was only the first step in the disciplinary
Indeed, Perry’s immediate supervisor at the time, Hatfield, appears to imply that the transfer
was his idea. In response to the question as to whose idea it was to transfer Perry, Hatfield
responded, “It would give her more of an opportunity to have a diverse work place. And most of
all your district personnel are three’s anyway. It would put her in a place where she could have
more of a diverse type of work and an opportunity to become [an ASA] three.” (Pl. Ex. D at
process. Because Perry did not subsequently experience a change in any benefits, pay, or any
other term, condition, or privilege associated with her job, there has not been an adverse
employment action. Thus, the prima facie case for racial discrimination in Perry’s reprimand
4. Perry has not identified any issues with her evaluations, including any adverse
employment actions related to the evaluations.
Apart from her complaint, Perry does not identify any problems with her work
evaluations. In addition to her failure to establish any comparators, Perry also does not identify
any adverse employment decisions resulting from her evaluations. Rather, the record evidence
indicates that Perry had no issues with any of the evaluations. E.g., (Pl. Ex. A at 87:5–8.)
Furthermore, there is no indication that the evaluations ever led to any adverse employment
decision; to the contrary, her evaluations had been good and supervisors testified to wanting to
position her for a promotion during the time she was receiving these high marks. Thus, because
Perry has not identified any issues with her evaluations, she has failed to establish a prima facie
case for disparate treatment with her evaluations.
5. Perry has not identified any comparators.
“The plaintiff and the employee she identifies as a comparator must be similarly situated
‘in all relevant respects.’” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004).
“In determining whether employees are similarly situated for purposes of establishing a prima
facie case, it is necessary to consider whether the employees are involved in or accused of the
same or similar conduct and are disciplined in different ways.” Holifield v. Reno, 115 F.3d 1555,
1562 (11th Cir. 1997). But, “[i]f a plaintiff fails to show the existence of a similarly situated
employee, summary judgment is appropriate where no other evidence of discrimination is
Perry has alleged that she was treated differently in evaluations, assignments, disciplinary
actions, and transfers based on her race. However, in asserting disparate treatment in these
employment conditions, Perry does not point to any white, similarly situated coworkers who
have acted in a similar manner but who have received more favorable treatment. In fact, the only
other person mentioned as having been in trouble is Flores, a white woman who was disciplined
for looking at the salary website. By contrast, Perry was only counseled for the same activity.
Because Perry has not identified any comparators who are similarly situated in nearly all respects
and who have received more favorable treatment, and because Perry has not shown any other
evidence of discrimination related to these claims, her prima facie case must fail.
6. Perry has not rebutted the Board’s legitimate, nondiscriminatory reason for its
Even assuming that Perry had established a prima facie case in her disparate discipline
claims, Perry has not pointed to any evidence or arguments against the Board’s legitimate,
nondiscriminatory reason for the reprimand and suspension. The Board argues that it suspended
Perry because she was “a problem employee who refused to comply with leave policies.” (Doc.
104 at 39.) Moreover, the record evidence shows that the reprimand was issued following a
conversation between Perry and her supervisor after she failed to show up to work at the
appropriate time. (Pl. Ex. 50.) During this conversation, Perry told her supervisor that she had to
be late because she was helping her father who had recently suffered a heart attack. However,
Perry never requested permission to be late. Furthermore, Perry testified in her deposition that
her supervisor believed the conversation to have been an altercation, but she dismissed it because
the supervisor was sensitive. (P. Ex. A at 248:22–249:4.) The Board’s stated reason was that
Perry’s subsequent reprimand was issued based on Perry’s tardiness and her insubordination.
Based on these reasons, this court finds that the Board met its “exceedingly light” burden of
proffering a legitimate, nondiscriminatory reason for its disciplinary actions. Thus, the burden
shifts to Perry to argue reasons why the reasons are pretextual.
Perry has not met her burden because she has not pointed to any argument or evidence
supporting a claim that the Board’s reasons are pretextual. Perry’s brief ignores these questions
and instead focuses solely on the prima facie case and the Board’s proffered reason. Because the
burden shifted to Perry to produce some indication that the reasons were pretext for racial
discrimination, and because Perry failed to offer such evidence, the Board’s motion for summary
judgment on the disparate treatment claim in disciplining Perry is due to be GRANTED.
Celotex, 477 U.S. at 324 (stating that, once the moving party has met its burden, the nonmoving
party “must go beyond the pleadings” and show that there is a genuine issue for trial).
d. Perry’s Hostile Work Environment Claim
The prima facie case for a hostile work environment claim requires the plaintiff to show
“(1) that he belongs to a protected group; (2) that he has been subject to unwelcome harassment;
(3) that the harassment must have been based on a protected characteristic of the employee, such
as national origin; (4) that the harassment was sufficiently severe or pervasive to alter the terms
and conditions of employment and create a discriminatorily abusive working environment; and
(5) that the employer is responsible for such environment under either a theory of vicarious or
direct liability.” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). The
Board appears to take some issue with the second element,3 but it expressly argues that Perry
cannot establish the fourth or fifth4 elements of the prima facie case. The court examines only the
fourth element in this case.
Perry claims she was racially harassed on several occasions. First, she claims she
was racially harassed when she was counseled on May 3, 2010 for disrupting the office after
looking at the pay website. Second, she says she was racially harassed when she was told on
May 3, 2010 that she could no longer take breaks with Flores. Third, she claims she was racially
harassed when she was transferred to District Ten on June 24, 2010. Fourth, she argues she was
racially harassed when she was interrogated on August 6, 2010 about her relationship with Lard.
Fifth, she claims to have been racially harassed when she was reassigned to work for Goolsby on
November 19, 2010 and when Goolsby subsequently did not allow Perry to take time off
unilaterally on April 14, 2011 to care for her father. Finally, she claims she was racially harassed
in July of 2011 when Knight was made her supervisor and when she was made to work with a
The Board argues that the harassment was not unwelcome because of allegations that Perry
engaged in a racially insensitive joke. While there is support for the proposition that engaging in
the abusive behavior defeats the second element, see, e.g., Balletti v. Sun–Sentinel Co., 909 F.
Supp. 1539 (S.D. Fla. 1995), the court here does not need to decide definitively whether the
harassment was unwelcome. Perry’s hostile work environment claim fails for another reason.
The Board in its brief, and Perry in her response brief, devotes substantial space to analyzing
the Supreme Court’s recent decision in Vance v. Ball State University. In that case, the Supreme
Court clarified the test for determining whether an individual is a supervisor for Title VII
purposes. Vance v. Ball State Univ., 133 S. Ct. 2434, 2443 (2013). Determining who qualifies as
a supervisor is important for an employer’s Farragher–Ellerth defense. However, as with the
Board’s argument on the second element, Perry’s hostile work environment claim fails for
another reason, and the court thus does not need to determine who the supervisors were in this
difficult co-employee. Perry also claims that she was harassed when Rogers requested her
internet usage reports on June 25, 2010 and when Rogers requested on November 16, 2010 that
Goolsby discipline her for deleting emails, but she does not say that she was aware of these
actions. Further, Perry points to Rogers’ use of racial slurs in her brief, but she does not identify
specific instances of such language in her hostile work environment argument.5
The requirement that the harassment be sufficiently severe or pervasive contains both an
objective and subjective element. Id. “Thus, to be actionable, this behavior must result in both an
environment that a reasonable person would find hostile or abusive and an environment that the
victim subjectively perceives to be abusive.” Id. (internal quotations and alterations omitted). In
examining objective severity, the court considers “(1) the frequency of the conduct; (2) the
severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a
mere offensive utterance; and (4) whether the conduct unreasonably interferes with the
employee’s job performance. Id. As the Supreme Court has stated “teasing, offhand comments
and isolated incidents do not constitute discriminatory changes in the terms and conditions of
employment.” Satchel v. Sch. Bd. Of Hillsborough Cnty., 251 F. App’x 626, 630 (11th Cir. 2007)
(citing Faragher v. City of Boca Raton, 524 U.S. 755, 788 (1998)).
For thoroughness, and despite Perry’s failure to connect these instances from her facts section
to her argument, the court includes here the instances of Rogers’ alleged racist language. A
former agent testified that she had heard Rogers comment that District Ten was “getting too
dark.” (Doc. # 121-12 at 38:2–8.) That same agent testified that Rogers had told her not to
consider a job applicant too favorably because “she had a reputation of being one of those uppity
black bitches.” (Doc. # 121-12 at 82:21–83:5.) Rogers admitted using the “n-word” in a
conversation with Goolsby about hiring an African-American agent. (Doc. # 121-7 at 88:16–20.)
Turner said Rogers used the “n-word” when recounting a story told by Perry at Perry’s request.
(Doc. # 121-8 at 204:11–205:7.) Hill testified that Rogers once stated that “all those N words
wanted something for nothing” in discussing the current lawsuit. (Doc. # 121-5 at 14:17–15:4.)
Finally, Hatfield testified that he had heard Rogers use the “n-word” but that he could not
remember where or in what context. (Doc. # 121-4 at 126:13–128:1.)
The alleged harassment in this case was not sufficiently severe or pervasive to constitute
a racially hostile work environment. As the Board’s brief points out, numerous employees of the
ABC Board testified that they had never personally heard the main supervisors or administrators
use racially abusive language in the workplace. (Doc. 104 at 41–44.) Those employees that did
testify to abusive language either mentioned only a few instances of the language or rumors that
a supervisor had used that language in the past. See, e.g., (Pl. Ex. A at 124:14–132:15.) Even
though one supervisor, Rogers, testified specifically to having used racially abusive language at
work on at least one occasion, this was not directed at Perry, nor was the comment made in her
presence. He testified, and there has been no evidence to contradict him, that the language was
not habitual or customary. (Def. Ex. 75, 84:23–85:19.) There have clearly been little more than
sporadic, isolated utterances that, individually, are offensive, but in sum cannot be aggregated to
be “severe or pervasive” enough to constitute a hostile work environment. All Perry has argued
is that a number of supervisors and administrators have used, or have potentially used, racially
abusive language, but only in one or two instances. Thus, because these sporadic instances of
racially insensitive language do not constitute “severe or pervasive” conduct that would alter the
terms and conditions of employment, Perry cannot establish a prima facie case for hostile work
Furthermore, each of Perry’s alleged instances of racial harassment fail to show a racially
hostile work environment. Specifically, Perry has failed to show how her perception of a racially
hostile work environment was objectively reasonable or how they were racially motivated. She
has not shown that the actions were unduly severe. She has not shown whether the conduct was
physically threatening or humiliating. Finally, Perry has not connected any of the alleged actions
to racial animus. Thus, Perry has failed to show the severe or pervasive racial harassment needed
for a hostile work environment claim, and as such the Board’s motion for summary judgment on
that claim is due to be GRANTED.
2. Count II
In Perry’s second count of her Second Amended Complaint, entitled “Plaintiff Kesia
Perry’s Claims of Retaliation for Opposing Discrimination Filing an Internal Complaint with the
State Personnel Board and Filing an EEOC Charge against the ABC Board (State of Alabama)”,
she alleges that she “was retaliated against for opposing discrimination, filing an internal
complaint with the State Personnel Board and for filing an EEOC charge in the area of
promotion, discipline, jobs and work assignments, transfers, and all other terms or conditions.”
(Doc. 6 ¶ 186). For the following reasons, the ABC Board’s Motion for Summary Judgment on
Perry’s second count is due to be GRANTED.
a. Retaliatory Discrete Acts
Title VII prohibits retaliation in the employment context by making it “an unlawful
employment practice for an employer to discriminate against any of his employees […] because
he has opposed any practice made an unlawful employment practice by this subchapter, or
because he has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). “A prima
facie case of retaliation contains three elements: first, the plaintiff engaged in statutorily
protected conduct; second, the plaintiff suffered an adverse employment action; and finally, the
adverse action was causally related to the protected expression.” Williams v. Motorola, Inc., 303
F.3d 1284, 1291 (11th Cir. 2002) (quotation omitted). An action is materially adverse if it might
dissuade “a reasonable worker from making or supporting a charge of discrimination.”
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). In the past, the Eleventh
Circuit has construed “the causal link element broadly so that a plaintiff merely has to prove that
the protected activity and the adverse action are not completely unrelated.” Higdon v. Jackson,
393 F.3d 1211, 1220 (11th Cir. 2004) (quotation, ellipsis, and alteration omitted). A causal
connection has been established if the plaintiff shows that “the decision-makers were aware of
the protected conduct, and that the protected activity and the adverse action were not wholly
unrelated.” Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 590 (11th Cir. 2000) (quotations and
alterations omitted). “For purposes of a prima facie case, close temporal proximity may be
sufficient to show that the protected activity and the adverse action were not wholly unrelated.”
Id. (quotations omitted). Recently, the Supreme Court has declared that the ultimate issue is
whether the retaliation would not have occurred but for the protected conduct. Univ. of Tex. Sw.
Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013).
In this case, the Board concedes that Perry engaged in protected activity on May 3, 2010,
when complaining to Goolsby that her pay disparity was based on race; on August 9, 2010, when
she filed a Charge with the EEOC; on August 18, 2010, when she filed a discrimination
complaint with the SPD; and on June 14, 2011, when she filed the complaint in this case. Perry
alleges no other acts as specific protected activity.
1. Failure to exhaust administrative remedies.
The court will assume, without holding, that Perry sufficiently exhausted her
administrative remedies in regard to her retaliation claims.
2. Perry’s reprimand did not constitute an adverse employment action.
For similar reasons to those discussed above under Perry’s disparate treatment claim, the
written reprimand for the stated reasons of tardiness and insubordination after she had filed this
suit is not an adverse employment decision warranting a finding of retaliation. Perry has failed to
show any negative impact on her job associated with the reprimand, and thus she has failed to
show that the reprimand was an adverse employment decision. While a formal reprimand can be
an adverse employment action, the reprimand must still be accompanied by some tangible harm.
See Pennington v. City of Huntsville, 261 F.3d 1262, 1267 (11th Cir. 2001) (stating that no
adverse employment action is established for retaliation purposes when a reprimand is rescinded
before a tangible harm occurs)6. Because some tangible harm must occur that would dissuade a
reasonable employee from complaining of discrimination, and because Perry has not shown any
tangible harm resulting from the reprimand, she has failed to establish a prima facie case as to
The Board’s motion for summary judgment on this claim is due to be
3. Perry’s instances of alleged retaliation, including, and resulting after, her
transfer to District Ten, do not constitute adverse employment actions.
The Eleventh Circuit continues to apply Pennington even after its decision in Burlington. See,
e.g., Polite v. Dougherty Cnty. Sch. Sys., 314 F. App’x 180, 183 (11th Cir. 2008); Rutledge v.
SunTrust Bank, 262 F. App’x 956, 958 (11th Cir. 2008).
As discussed above, an adverse action is only material if it might dissuade a reasonable
worker from making or supporting a charge of discrimination. Burlington N. & Santa Fe Ry. Co.,
548 U.S. at 68. Such adverse actions must be accompanied by some tangible harm to the
protected employee. See Webb–Edwards v. Orange Cnty. Sheriff’s Office, 525 F.3d 1013, 1031
(11th Cir. 2008).
Perry claims that she was retaliated against after she was transferred to District Ten when
she was questioned concerning her phone calls, asked to sign a statement promising not to
remove documents from the office, and interrogated and advised regarding her relationship with
an ex-agent. Perry has not shown any tangible harm resulting from these actions. An employee
can be subjected to “petty slights, minor annoyances, and simple lack of good manners” without
there being actionable discriminatory retaliation, Burlington N. & Santa Fe Ry. Co., 548 U.S. at
68, and in this case, at most, that is the only manner in which these activities could be
characterized. Because Perry did not suffer any tangible harm related to her work following these
alleged harassments, there is no adverse employment action, and she has failed to establish a
prima facie case in that regard. Thus the Board’s motion for summary judgment on these
retaliation claims is due to be GRANTED.
Perry’s transfer claim facially seems more promising, but it also fails to show an adverse
employment action. She has not presented evidence showing that the transfer negatively
impacted her career in a material way. See Hall v. Dekalb Cnty. Gov’t, 503 F. App’x 781, 790
(11th Cir. 2013). By moving Perry closer to her home and her children’s school, and by
potentially placing her in a position to be promoted more readily to an ASA III, there appears to
have been no negative impact on Perry’s job at all. Moreover, Perry has not shown that the
transfer to District Ten prevented her from attaining a new professional status or something of
that nature. Because Perry has failed to demonstrate an adverse employment action in her
retaliatory transfer claim, she has failed to establish a prima facie case, and the Board’s motion
for summary judgment on that claim is due to be GRANTED.
4. The three day suspension
While Perry does not appear to argue that her three-day suspension was an act of
retaliation, suspension would constitute an adverse employment action. However, the closest
protected activity to that was the filing of this lawsuit. That occurred on January 11, 2012,
nearly seven months earlier. For close temporal proximity to satisfy the causation element of the
prima facie case, the time that the plaintiff’s employer learns about the protected activity and the
time of the subsequent adverse activity must be very close. Raspanti v. Four Amigos Travel, Inc.,
266 Fed. App’x 820, 823 (11th Cir. 2008). “A delay of ‘three to four month[s]’ does not suffice.”
Id. (quoting Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007)). For that
reason, Perry has not established a prima facie case for retaliation based on her suspension, and
the Board’s motion for summary judgment is due to be GRANTED on that claim.
5. The “but-for” test.
Even if any of the alleged discrete acts of retaliation were sufficient to make out a prima
facie case, they would not survive the “but-for” test.
Recently, the Supreme Court clarified what level of causation is required for Title VII
cases, holding that a plaintiff alleging retaliation must show that the retaliation would not have
occurred but for the plaintiff’s involvement with protected activity. Nassar, 133 S. Ct. at 2534.
Thus, the plaintiff must show “‘that the harm would not have occurred’ in the absence of—that
is, but for—the defendant’s conduct.” Id. at 2525 (citing, inter alia, Restatement of Torts § 431
cmt. a). As a result, the proper causation analysis no longer considers whether the protected
conduct was a “motivating factor” in an adverse employment decision. See id. at 2534.
In response to the Board’s arguments and evidence, Perry has not presented any evidence
showing that the alleged retaliatory actions would not have occurred but for her protected
conduct. See Nassar, 133 S. Ct. at 2534. Rather, the record evidence indicates that the actions
would have occurred regardless of Perry’s protected conduct. Specifically, Perry has not shown
that, but for her protected conduct, she would not have been transferred. Instead, she has failed to
refute her supervisors’ contention that she would have been transferred regardless in order to
position her for a promotion. Furthermore, she has not shown that the alleged retaliation over her
phone calls, her relationship with the ex-agent, or the signed statement would not have occurred
but for her protected conduct. Rather, with the signed statement and the relationship, the Board
has asserted, and Perry has failed to refute, that these actions were related to an ongoing criminal
investigation of Lard. In addition, Perry has failed to establish any causation between being
asked to limit her telephone conversations and her protected conduct. Coupled with her
supervisor’s claim that her personal calls were disruptive to the work environment, Perry needed
to show that this would not have occurred but for her protected conduct and not as a result of
normal supervisory activities.
For the same reasons discussed above with Perry’s claim of racially disparate disciplinary
actions, Perry has not rebutted the Board’s legitimate, nondiscriminatory reason for its
disciplinary actions as to these claims. Specifically, the Board presented evidence that Perry was
reprimanded for insubordination and tardiness, both legitimate reasons stemming from the
Board’s management of the workplace. (Pl. Ex. 50.) Furthermore, the Board recommended the
suspension due to Perry’s consistent failure to abide by the workplace absence rules. (Def. Ex.
55.) As a result, the burden shifts to Perry to argue that the Board’s proffered reasons for the
discipline were pretext. Perry completely failed to argue or present any evidence showing that
these reasons were pretextual.
For these reasons, even if the evidence on any of the claims based on alleged
discrete acts of retaliation could be sufficient to establish a prima facie case, the court finds that
summary judgment is still due to be GRANTED as to each of them.
b. Retaliatory Hostile Work Environment
As to Perry’s argument regarding retaliatory hostile environment, just as the Board
argues in regard to Aaron’s claim, Perry did not include a retaliatory hostile work environment
claim in her original complaint and thus it cannot be included in her opposition to the Board’s
Motion for Summary Judgment. Notably, Count I specifically alleges that the racial
discrimination was in various areas “including a hostile environment,” while the retaliation
claim, this count, did not include that. This may be because it did not occur to the Plaintiff until a
retaliatory hostile work environment claim was recognized in the Eleventh Circuit in 2012 in
Gowski v. Peake, 682 F.3d 1299, 1312 (11th Cir. 2012), several months after the Second
Amended Complaint was filed. Perry did not, however, move to amend to add such a claim. “[A]
plaintiff cannot amend his complaint through argument made in his brief in opposition to the
defendant’s motion for summary judgment.” Miccosukee Tribe of Indians of Fla. v. United
States, 716 F.3d 535, 559 (11th Cir. 2013).
c. Count II Fails
For the reasons stated above, the Board is entitled to summary judgment on all claims
made in Perry’s Count II.
B. Valencia Aaron’s Claims
1. Count V
In Count V of the Second Amended Complaint, entitled “Plaintiff Valencia Aaron’s
Claims of Race Discrimination against the ABC Board (State of Alabama) in Violation of Title
VII,” Aaron alleges that she “has been discriminated against on the basis of her race and in
violation of Title VII in promotions, pay, job and work assignments, discipline, evaluations and
in all other terms and conditions including a hostile environment because of racial harassment by
her employer, the ABC Board (State of Alabama).” (Doc. # 6 ¶ 192.) For the following reasons,
the ABC Board’s Motion for Summary Judgment on Aaron’s Count V is due to be GRANTED.
a. Aaron’s Failure to Promote Claims
1. Aaron’s Promotion Claims other than Her Claim Related to Roberts’ Promotion
As a preliminary matter, and as raised by the Board in moving for summary judgment,
Aaron has failed to timely raise with the EEOC any promotion claims except for Roberts’
promotion to sergeant in June of 2010. Aaron concedes in her Response Brief that her promotion
claims arising from Chandler and Wilson’s promotions are untimely under Title VII. (Doc. # 132
at 51 n.22.) Furthermore, as the Board points out, only the June 2010 promotion was mentioned
in Aaron’s EEOC complaints. Thus, any other promotions, whether before or after Roberts’
promotion, have not been raised, and Aaron has failed to exhaust her administrative remedies as
to other failure to promote claims. United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977) (“A
discriminatory act which is not made the basis for a timely charge is the legal equivalent of a
discriminatory act which occurred before the statute was passed. It may constitute relevant
background evidence in a proceeding in which the status of a current practice is at issue, but
separately considered, it is merely an unfortunate event in history which has no present legal
consequences.”). Therefore, any claims for promotions that preceded or followed Roberts’
promotion fail, and the Board’s Motion for Summary Judgment on any such claims is due to be
GRANTED. The court now addresses Aaron’s claim based on Roberts’ promotion.
2. Aaron’s Claim Related to Roberts’ Promotion
For the purposes of this Motion for Summary Judgment, the Board concedes that Aaron
can meet her prima facie case for her claim on Roberts’ promotion. That said, however, the
Board asserts that Aaron has not and cannot rebut the Board’s legitimate, nondiscriminatory
reason for choosing Roberts over Aaron for the Enforcement Training Coordinator position.
As its legitimate, nondiscriminatory reason for choosing Roberts for the enforcement
training coordinator position, the Board pointed to the relative qualifications of Roberts that
made him a more attractive choice for the position than Aaron. Specifically, in a memorandum
from Rogers to Goolsby, Rogers sets out the following reasons for selecting Roberts for the
position: nine years of police firearm certification; five years of investigative experience with the
Montgomery Police Department; four and a half years as a certified FBI firearms instructor;
experience in multiple districts as an ABC Agent; experience as a lead firearms instructor for the
ABC, including supervisory experience over eighteen other firearms instructors; and experience
with the ABC Drug Unit. (Doc. # 101-3 at 47.) In addition, Rogers said that he personally
assigned Roberts to his agent positions and that, during Roberts’ involvement as an agent,
Rogers heard little or no criticism of Roberts’ job performance. (Id.) Furthermore, Aaron admits
that she lacked the same level of firearms training as Roberts. (Doc. # 101-12 at 109:17–21.)
While subjective preference alone can be a legitimate, nondiscriminatory reason for choosing a
candidate for a supervisory or professional position, Springer, 509 F.3d at 1349, it is clear here
that the chosen candidate had concrete, objective firearm qualifications and supervisory
experience over firearms instructors that made him a better choice. Included in the Board’s
evidence is an affidavit from Aaron’s supervisor at the time, James Collins, African-American,
stating that he too would have selected Roberts, based on his superior qualifications. (Doc.
# 101-1 ¶ 4.) Because the Board articulated a legitimate, nondiscriminatory reason by arguing
that it chose a firearm training instructor with more firearm training and experience than Aaron,
the burden shifts to Aaron to show pretext.
Aaron fails to show that the Board’s legitimate, nondiscriminatory reason for choosing
Roberts as the enforcement training coordinator was pretext for discrimination. In arguing this
point, Aaron discusses the Board’s alleged past manipulation of the promotion registry. In
particular, she states that “Roberts was assigned acting sergeant duties which (1) indicates that he
was selected for promotion and (2) which arguably enhanced his score and placement on the
register.” (Doc. # 132 at 53.) What Aaron’s argument fails to show, however, is how exactly
those duties possibly enhanced his promotion score. Instead, Aaron only provides one page of
Roberts’ examination application for the sergeant position. (Doc. # 130-3 at 8.) This one-page
document does not establish anything concerning Roberts’ duties. Furthermore, even if Roberts
was hand-selected for promotion, Aaron has failed to show any discriminatory intent. Rather,
with Roberts’ past experience with firearms training, a promotion to the ETC appears to be a
predictable outcome. Finally, even if some favoritism was shown to Roberts, favoritism alone is
not evidence of racial discrimination. See Coutu, 47 F.3d at 1074. Aaron needed to show
discriminatory animus. Because she has failed to do so, and because she has not shown “such
weaknesses, implausibilities, inconsistencies or contradictions” in the Board’s proffered
legitimate, nondiscriminatory reason for promoting Roberts over Aaron, the Board’s Motion for
Summary Judgment on that claim is due to be GRANTED. Cooper, 390 F.3d at 725; Reeves,
530 U.S. at 148–49.
b. Aaron’s Other Disparate Treatment Claims
Apart from the vague claims set forth in her Second Amended Complaint, Aaron does not
argue or address the Board’s arguments concerning her remaining disparate treatment claims.
Specifically, the Board states that Aaron “fail[ed] to address any of the ABC Board’s arguments
with respect to other claims of disparate treatment she alleged in her Second Amended
Complaint relating to surveillance, discrimination with respect to performance evaluation,
discrimination with respect to job assignments, […] discrimination with respect to pay[, and]
pregnancy discrimination.” (Doc. # 139 at 7.) After reviewing Aaron’s brief, this court agrees
with the Board. Aaron has not presented any evidence or argument on those claims to oppose the
Board’s well-supported Motion for Summary Judgment. She has not rebutted the Board’s
arguments concerning whether she has comparators, whether she exhausted her administrative
remedies, or whether the alleged employment actions were adverse. Celotex Corp., 477 U.S. at
322 (explaining that, after the moving party demonstrates the absence of a genuine issue of
material fact, the nonmoving party must “go beyond the pleadings” and show that there is a
genuine issue for trial). Thus, these claims are deemed abandoned, and summary judgment is due
to be GRANTED for the Board on those claims. See Resolution Trust Corp. v. Dunmar Corp.,
43 F.3d 587, 599 (11th Cir. 1995).
c. Aaron’s Hostile Work Environment Claim
Aaron largely collapses her racially hostile work environment claim and a retaliatory
hostile work environment argument into the same analysis. However, Count V is based only on
race, and Count VI, which is Aaron’s retaliation claims, does not include a claim for retaliatory
hostile work environment. In presenting its argument on Aaron’s racially hostile work
environment claim, the Board takes issue with the fourth and fifth elements of the hostile work
environment prima facie case. This court only addresses the fourth element.7 For the reasons
As with Perry, above, the Board argues that none of the identified individuals were
“supervisors” for Title VII liability. However, as with Perry, Aaron’s hostile work environment
stated below, the Board’s Motion for Summary Judgment on Aaron’s Title VII hostile work
environment claim is due to be GRANTED.
As pieced together from the submissions of both parties, Aaron has not pointed to
sufficient harassment from which a reasonable jury could conclude that there was a sufficiently
severe or pervasive level of racial harassment in the workplace to support this claim. With
regards to explicitly racist remarks or indicia, Aaron was aware of the same instances as Perry.
She heard Folmar once refer to an African-American male as “working like a little monkey” in
the warehouse, but she could not remember at what time. (Doc. 128-1 at 449:20–23.) Folmar’s
comment is the only instance of racially antagonistic language that Aaron said was made in her
presence. Hatfield said that he had heard warehouse employees use the “n-word,” but he could
not remember the exact context of the slurs or at what times they were used. (Doc. # 128-6 at
126:3–13.) Similarly, Hatfield recalls Rogers using racial slurs, but he could not remember the
context, times, or frequency of those situations either. (Doc. # 128-6 at 126:17–128:4.)
Moreover, Hatfield heard Folmar use racial slurs, but he could not remember at what time. (Doc.
# 128-6 at 199:2–7.) Hatfield did say that he remembered Folmar commenting that Richardson
was hired to communicate with African-American legislators, but he did not say when Folmar
made this comment. (Doc. # 128-6 at 70:11–71:14.) Rogers admitted to using racial slurs, but
said it was not habit or custom. (Doc. # 128-4 at 84:23–85:13.) The only specific instance Rogers
recalled of using a racial slur consists of a recollection, substantiated by Hill, that he used the “nword” in reference to an African-American female job applicant sometime in 2010. (Doc. 128-4
at 85:14–89:11; Doc. 128-8 at 12:3–22.) Rogers also used the “n-word” when quoting a line
from a movie to McKitt. (Doc. #139-2 ¶ 12.) Hill also heard Rogers say that the Plaintiffs in this
claim fails for another reason, and the court thus does not need to determine who the supervisors
were in this case.
case were “N words [who] wanted something for nothing.” (Doc. # 128-8 at 17–19.) Turner
heard Rogers use the “n-word” once without mentioning a specific time, and she said the word
was only used at Perry’s request in quoting a story Perry had told. (Doc. 128-5 at 205:2–7.) In
reference to an investigation concerning alcohol stolen from the ABC warehouse, Holston said
Folmar stated “he wanted the [n-word] hung from a light pole,” but he did not mention a specific
time at which Folmar made this statement. (Doc. # 128-1 at 453:2–10.) Perry said that she saw
Confederate battle flags on personal vehicles but she did not mention at what times. (Doc. # 1283 at 130:7–13.) Perry also heard a reference to the Ku Klux Klan during a conversation about the
“n-word” with Goolsby and another ABC employee, but she did not mention on what date this
conversation happened. (Doc. # 128-3 at 130:7–131:16.) Parker testified that she heard Rogers
say that District Ten was becoming “too dark” when discussing where to place a new AfricanAmerican recruit, but Parker did not specify the exact date of this comment. (Doc. # 128-7 at
38:2–8.) She also said Rogers did not want her to consider an African-American female
applicant too favorably “because she had a reputation of being one of those uppity black
bitches.” (Doc. #128-7 at 82:21–83:5.)
As other instances of alleged harassment, Aaron identifies several examples in her
statement of the facts. She argues that the extension of her probation period in June of 2006 was
discrimination. (Doc. # 132 at 9.) She claims that the delay from November of 2006 to March of
2007 in approving her request to transfer to District Ten was discriminatory. (Doc. # 132 at 10.)
Aaron believes she was discriminated against with selections to the training task force during her
time with the Drug Unit, from March of 2007 to June of 2008. (Doc. # 132 at 11.) From that
same timeframe, she claims that the security detail assignments, and specifically the subsequent
promotional advantages from those details, were discriminatory. (Doc. # 132 at 11–12.) She
states that the permanent move from the Drug Unit during and after her pregnancy in 2008 was
discriminatory. (Doc. # 132 at 12–13.) Finally, she points to a change in the office’s breakfast
rules on December 17, 2010 as discriminatory. (Doc. # 132 at 36.) Despite these allegations in
the facts, however, she makes no later attempt at connecting these statements to arguments in her
Aaron also says that she was aware of other parties’ harassment and that this contributed
to her own hostile work environment experience. Specifically, she was concerned over Hill’s
removal after Hill complained that Taylor and McKitt were assigned to warehouse duties
because of their race. In addition, she points to Turner’s decision to discipline Taylor and McKitt
for not having sufficient cases despite not allowing agents to leave the office to make new cases.
Furthermore, she was concerned about Holston arriving in the office to watch over everyone.
Aaron cites her contention of Rogers’ practice of pre-selecting individuals for promotions and
Goolsby’s apparent acquiescence in this scheme. Finally, she knew of Lard’s arrest and Perry’s
interrogation because Rogers and Josh Law’s investigations had been covered up. In sum, all of
this, to Aaron, meant that “[t]he African-American employees of the ABC Board reasonably and
correctly felt they were under siege.” (Doc. # 132 at 69.)
After considering all of the evidence presented to the court, these alleged instances do not
constitute the level of severe or pervasive harassment necessary to support a hostile work
environment claim. In particular, while she subjectively perceived her work environment to be
racially hostile, she has not shown that the alleged harassment was objectively severe or
pervasive. Concerning the instances of racist language and indicia, Aaron personally witnessed
only a very few racist remarks, and, while having been told by others of several other instances,
the other comments listed by both parties represent only sporadic, isolated incidents. In the
aggregate, Aaron has not shown that the racist remarks were frequent. Moreover, she has not
shown that they were physically threatening or humiliating nor that they interfered with her job
performance. Instead, the racist language in this case consists of isolated, sporadic instances of
mere offensive utterances, and as such Aaron has not succeeded at using this as a basis for her
hostile work environment claim. Faragher, 524 U.S. at 788.
Furthermore, even when the racist language is taken into account with Aaron’s scattered
allegations of harassment, she still has not shown a sufficiently severe or pervasive level of
harassment. Instead, once again, she fails to show how these events combined to form an
objectively reasonable perception of severity or pervasiveness. “[T]o be actionable, [the]
behavior must result in both an environment that a reasonable person would find hostile or
abusive and an environment that the victim subjectively perceives to be abusive.” Id. (internal
quotations and alterations omitted). In examining objective severity, the court considers “(1) the
frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically
threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct
unreasonably interferes with the employee’s job performance. Id. As the Supreme Court has
stated “teasing, offhand comments and isolated incidents do not constitute discriminatory
changes in the terms and conditions of employment.” Satchel v. Sch. Bd. Of Hillsborough Cnty.,
251 F. App’x 626, 630 (11th Cir. 2007) (citing Faragher v. City of Boca Raton, 524 U.S. 755,
788 (1998)). The inquiry is whether “[a] jury reasonably could find […] that a meaningful
portion of the allegedly offensive conduct in the office contributed to conditions that were
humiliating and degrading […] and therefore may have created a discriminatorily abusive
working environment.” Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 811 (11th Cir.
The instances of harassment in this case were spread out over at least four and a half
years. Furthermore, none of these instances were physically threatening or humiliating to Aaron.
In addition, she has not explained how these instances were objectively severe. For example,
there is no discussion of how the extension of her probation period was somehow severe, nor is
there any indication of the severity attached to Hill’s removal from District Ten. Finally, Aaron
does not indicate in any way whether the alleged instances unreasonably interfered with her job
performance. Instead, the only evidence presented by both parties indicates that Aaron did not
have any obstructions to her job performance based on her race. Based on these factors, Aaron
has not shown that the alleged harassment constituted objectively severe or pervasive harassment
that altered the terms or conditions of her employment. Thus, Aaron’s hostile work environment
claim fails, and the Board’s Motion for Summary Judgment on that claim is due to be
2. Count VI: Retaliation
In Count Six of Aaron’s Second Amended Complaint, entitled “Plaintiff Valencia
Aaron’s Claims of Retaliation for Opposing Discrimination[,] Filing an Internal Complaint with
the State Personnel Board and Filing an EEOC Charge against the ABC Board (State of
Alabama),” Aaron states that she “was retaliated against for opposing race and sex
discrimination, filing an internal complaint with the State Personnel Board and for filing an
EEOC charge in the area of discipline, jobs and work assignments, promotions, transfers, and all
other terms or conditions of employment.” (Doc. # 6 at 25.) Aaron does not argue any other
bases for retaliation other than a retaliatory hostile work environment. (Doc. # 132 at 57.)8 Thus,
any claim relating to discrete retaliatory acts is deemed to have been abandoned. See Resolution
Trust Corp., 43 F.3d at 599.
As to Aaron’s argument regarding retaliatory hostile environment, for the same reasons
set out as to Perry, Aaron has no such claim. Thus, the Board is entitled to summary judgment on
C. Stacy D. Taylor’s Title VII Claims
Plaintiff Taylor sets out two separate general Title VII claims for relief in his Second
Amended Complaint. Although Taylor’s counts are vague, this court has gleaned the following
causes of action from his complaint.
1. Count IX
In Taylor’s Count IX of the Second Amended Complaint, entitled “Plaintiff Stacy D.
Taylor’s Claims of Race Discrimination against the ABC Board (State of Alabama) in Violation
of Title VII”, he alleges that he “has been discriminated against on the basis of his race and in
violation of Title VII in promotions, pay, job and work assignments, discipline, constructive
discharge, evaluations and in all other terms and conditions including a hostile environment
because of racial harassment by his employer, the ABC Board (State of Alabama).” (Doc. # 6 ¶
On that page, Aaron states that “[t]he adverse action which affected the terms and conditions is
the racial harassment and retaliatory harassment which constituted a hostile work environment.”
Furthermore, in a footnote, she says she “is not attempting to obtain relief for discrete incidents
which occurred outside the statute of limitations.” (Doc. # 132 at 57 n.24.)
200.) For the following reasons, the ABC Board’s Motion for Summary Judgment on Taylor’s
ninth count is due to be GRANTED.
a. Taylor’s Failure to Promote Claim
As a preliminary matter, as raised by the Board in moving for summary judgment,
Taylor’s promotion claims in this case are due to be dismissed because he failed to timely raise
them in an EEOC Charge. Taylor only affirmatively argues a promotion claim based on
comparing white agents Chandler and Wilson’s promotions. Taylor concedes in his brief that this
claim is not timely for a Title VII claim, and he states that he only asserts it as to Rogers under
§ 1981 through § 1983. (Doc. # 138 at 40 n.28.) Therefore, the Board’s Motion for Summary
Judgment on that claim is due to be GRANTED under Title VII, and this will be discussed later
as to the claim against Rogers individually.
b. Taylor’s Disparate Pay Claim
In this case, Taylor makes no separate argument concerning disparate pay. He does not
point to any evidence supporting a disparate pay claim. Furthermore, Taylor admitted in his
deposition that he is not making any claims concerning his pay while at the ABC Board. (Doc. #
137-1 at 162:5–15.) In the face of the Board’s well-supported motion as to this claim, Taylor has
pointed to no evidence, and therefore the Board’s Motion for Summary Judgment on the
disparate pay claim is due to be GRANTED.
c. Taylor’s Other Race Discrimination Claims
Taylor has alleged that he received different evaluations, assignments, and discipline on
account of his race. The Board does not contest Taylor’s assertion that he is in a protected class
nor that he was qualified to do the particular job.
1. Taylor’s disparate discipline claim concerning his June 2009
suspension was not timely raised in an EEOC Charge.
Taylor’s first contact with the EEOC was, at the earliest, on December 9, 2009. He first
filed a Charge with the EEOC on February 18, 2010. Even if the applicable time for determining
the 180-day requirement were the earlier December date when he first contacted the EEOC,
Taylor would still have missed the 180-day cutoff to report his June 2009 suspension. As such,
Taylor has failed to timely file with the EEOC, and thus his discriminatory suspension claim
fails. Pijnenburg, 255 F.3d at 1305. Thus, the Board’s Motion for Summary Judgment on that
claim is due to be GRANTED.
2. Taylor’s new work assignments did not constitute adverse
Taylor argues that he was discriminated against with work assignments on two levels.
First, he argues that he was discriminated against because he was denied assignments that would
have positioned him for a reallocation from agent to sergeant. Specifically, he points to Chandler
and Wilson, two agents who received additional duties from Rogers and who were subsequently
promoted. Second, he argues that he was discriminated against with his warehouse and driving
a. Assignments compared to Chandler and Wilson
As a preliminary matter, the Board argues that the Second Amended Complaint did not
allege any discrimination with regards to the assignment of additional duties to Chandler and
Wilson and that this claim cannot be included at the summary judgment stage. However,
construing the Second Amended Complaint for the purposes of this motion, this court finds that,
under the particular circumstances of this case, the Second Amended Complaint could include a
claim for intentional discrimination with favorable work assignments. In the Second Amended
Complaint, Taylor alleges that he was discriminated against in his job and work assignments on
the basis of his race. (Doc. # 6 ¶ 200.) Moreover, the Second Amended Complaint asserts that
“[d]uring Taylor’s tenure as an agent, he was passed over for promotions to sergeant when
Derrick Wilson, Scotty Chandler, Jason Roberts and other white males were promoted.” (Doc. #
6 ¶ 172.) Also, the Second Amended Complaint alleges that “Taylor and other Blacks were as
qualified or more qualified than the white candidates.” (Id.) This court finds that these
statements, coupled with subsequent discovery, gave the Board fair notice of a potential claim
into any job and work assignments pertaining to Taylor, whether given, received, or denied, and
how they pertained to subsequent promotion decisions. See Twombly, 550 U.S. at 555. However,
this claim fails for other reasons.
Just as with Taylor’s claim of failure to promote to positions given to Chandler and
Wilson, any claim based on job assignments leading up to those promotions is time-barred for a
Title VII claim.
b. Warehouse and driving assignments
Second, Taylor fails to address his discriminatory warehouse and driving assignments
claim as a discrete discriminatory act in the context of Title VII. While he argues that the
warehouse was hot and dirty and was thus considered a punitive assignment, he does not identify
any other evidence showing how the warehouse assignment was a serious and material adverse
employment action. The same reasoning applies with his driving claims. Taylor only mentions
that he was asked to drive an African-American senator and ABC captain. He does not identify
any serious and material change associated with this assignment. As such, Taylor has not
satisfied the prima facie case with his discriminatory assignments claims.
Even if a material adverse employment action were assumed, Taylor has not presented
any evidence to rebut the legitimate, nondiscriminatory reason for the warehouse and driving
assignments. The Board submitted evidence that warehouse security was part of the duties that
all ABC Enforcement Agents are assigned to perform to prevent thefts, and also that white
agents provided security for legislators and dignitaries. This court agrees that the uniform
application of driving and warehouse assignments is a legitimate, nondiscriminatory reason for
giving Taylor such assignments. Thus, the burden shifts to Taylor to rebut this reason, and he
completely fails to submit evidence to support a finding that the proffered reason is pretext. He
states in his brief that he worked in the warehouse more than white agents who had lower
statistics, but he fails to show the frequency with which white agents were assigned to the
warehouse or the white agents’ actual job performance numbers. Because Taylor had the burden
of showing the Board’s legitimate, nondiscriminatory reason to be pretextual, and because he
completely failed to do so, Taylor’s discriminatory driving and warehouse assignments claim
c. No basis for Title VII discrete assignments claims
For these reasons, any Title VII claims based on these actions fail to survive summary
3. Taylor has not identified any issues with his evaluations, including
any adverse employment actions related to the evaluations.
Apart from the Second Amended Complaint, Taylor does not identify any problems
related to his evaluations. In his deposition, he admitted that he had no problems with his
evaluations, with the exception of the ancillary issue of mandatory disciplinary deductions. (Doc.
# 137-1 at 162:18–163:5.) In the face of the well-supported Motion for Summary Judgment on
this claim, he does not point to any evidence of a serious and material change in his employment
resulting from his evaluations. In fact, Taylor does not seem to argue this claim at all. As such,
his claim for discriminatory evaluations fails, and the Board’s Motion for Summary Judgment on
this claim is due to be GRANTED.
4. Taylor has not shown any serious and material change in the terms
and conditions of his employment resulting from the November
Taylor claims that the two written warnings he received—one for a failure to maintain his
state-issued car when a dent was discovered in a door, and another for inadequate job
performance—were discriminatory. However, Taylor has not shown any serious and material
change in his employment resulting from the November warning for failing to maintain his stateissued car. Because Taylor had the burden of showing his prima facie case, and because he has
not identified any evidence to support a finding that the warning resulted in a tangible, adverse
change in his employment conditions, the Board’s Motion for Summary Judgment on that claim
is due to be GRANTED. In addition, Taylor has failed to show that the Board’s proffered reason
of a uniform policy in this regard, including evidence of warning a white agent because of stains
on a car seat, was pretext for racial discrimination.
5. December warning for inadequate job performance
As part of Taylor’s December 2009 warning for inadequate job performance, Taylor was
recommended for transfer to District Nine. This court assumes, without deciding, that Taylor
established a material adverse employment action in his Title VII claim on the December 2009
warning. However, as discussed below, his prima facie case on that claim fails for other reasons.
As argued by the Board in discussing the December 2009 warning, Taylor has not shown
any racial animus associated with the warning and transfer decision. Furthermore, Taylor has not
identified any white comparators who were treated more favorably. Finally, the Board proffered
the legitimate, nondiscriminatory reason that Taylor’s transfer was one of several transfers used
to remedy disciplinary or performance issues. Included in those transfers were several white
agents. (Doc. # 101-7 ¶ 11.) Taylor has not argued or shown any evidence as to how this uniform
policy of transferring agents for disciplinary or performance issues was discriminatory, and as
such this claim fails.
d. Hostile Work Environment
The Board argues that Taylor cannot establish the fourth or fifth elements of the prima
facie hostile work environment case.9 The court examines only the fourth element—severity or
The requirement that the harassment be sufficiently severe or pervasive contains both an
objective and subjective element. Id. “Thus, to be actionable, this behavior must result in both an
environment that a reasonable person would find hostile or abusive and an environment that the
victim subjectively perceives to be abusive.” Id. (internal quotations and alterations omitted). In
examining objective severity, the court considers “(1) the frequency of the conduct; (2) the
severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a
mere offensive utterance; and (4) whether the conduct unreasonably interferes with the
employee’s job performance. Id. As the Supreme Court has stated “teasing, offhand comments
and isolated incidents do not constitute discriminatory changes in the terms and conditions of
employment.” Satchel v. Sch. Bd. Of Hillsborough Cnty., 251 F. App’x 626, 630 (11th Cir. 2007)
(citing Faragher v. City of Boca Raton, 524 U.S. 755, 788 (1998)).
As with Perry, above, the Board argues that none of the identified individuals were
“supervisors” for Title VII liability. However, as with Perry, Taylor’s hostile work environment
claim fails for another reason, and the court thus does not need to determine who the supervisors
were in this case.
In addition to the various discrete acts of alleged racial discrimination discussed above,
Taylor alleges other things as having created a racial hostile work environment while he was at
the ABC Board. From the submissions of the parties, the court has pieced together all of Taylor’s
alleged instances of harassment that could constitute a racially hostile work environment. With
regards to explicitly racist remarks or indicia, Taylor raised the same instances as Perry. Aaron
heard Folmar once refer to an African-American male as “working like a little monkey” in the
warehouse, but she could not remember at what time. (Doc. 128-1 at 449:20–23.) Hatfield said
that he had heard warehouse employees use the “n-word,” but he could not remember the exact
context of the slurs or at what times they were used. (Doc. # 128-6 at 126:3–13.) Similarly,
Hatfield recalls Rogers using racial slurs, but he could not remember the context, times, or
frequency of those situations either. (Doc. # 128-6 at 126:17–128:4.) Moreover, Hatfield heard
Folmar use racial slurs, but he could not remember at what time. (Doc. # 128-6 at 199:2–7.)
Hatfield did say that he remembered Folmar commenting that Richardson was hired to
communicate with African-American legislators, but he did not say when Folmar made this
comment. (Doc. # 128-6 at 70:11–71:14.) Rogers admitted to using racial slurs, but said it was
not habit or custom. (Doc. # 128-4 at 84:23–85:13.) The only specific instance Rogers recalled of
using a racial slur consisted of a recollection, substantiated by Hill, that he used the “n-word” in
reference to an African-American female job applicant sometime in 2010. (Doc. 128-4 at 85:14–
89:11; Doc. 128-8 at 12:3–22.) Hill also heard Rogers say that the Plaintiffs in this case were “N
words [who] wanted something for nothing.” (Doc. # 128-8 at 17–19.) Turner heard Rogers use
the “n-word” once without mentioning a specific time, and she said the word was only used at
Perry’s request in quoting a story Perry had told. (Doc. 128-5 at 205:2–7.) In reference to an
investigation concerning alcohol stolen from the ABC warehouse, Holston said Folmar stated
“he wanted the [n-word] hung from a light pole,” but he did not mention a specific time at which
Folmar made this statement. (Doc. # 128-1 at 453:2–10.) Perry said that she saw Confederate
battle flags on personal vehicles but she did not mention how many or at what times. (Doc.
# 128-3 at 130:7–13.) Perry also heard a reference to the Ku Klux Klan during a conversation
about the “n-word” with Goolsby and another ABC employee, but she did not mention on what
date this conversation happened. (Doc. # 128-3 at 130:7–131:16.) Parker testified that she heard
Rogers say that District Ten was becoming “too dark” when discussing where to place a new
African-American recruit, but Parker did not specify the exact date of this comment. (Doc. #
128-7 at 38:2–8.) She also said Rogers did not want her to consider an African-American female
applicant too favorably “because she had a reputation of being one of those uppity black
bitches.” (Doc. #128-7 at 82:21–83:5.) A warehouse supervisor, whose name Taylor could not
remember, told Taylor that Folmar liked to use slurs, but the supervisor did not tell Taylor which
slurs, at what times, and in what context. (Doc. # 103-17 at 39:9–40:11.) However, despite
saying in his brief that he was aware of these instances, Taylor admits that he never personally
heard any racial slurs or jokes, nor did he ever see any overt indicia of racism at the office. (Doc.
# 137-1 at 71:4–73:16.) He did not become aware of most of the alleged slurs until after his
employment ended. (Doc. # 137-1 at 255:6–256:3.)
Taylor also points to alleged disparate treatment received by African-Americans, and
especially himself, as evidence of a racially hostile work environment. (Doc. # 138 at 53–55.)
Taylor claims the Board harassed him when he was assigned to work at the warehouse for a
week in December 2008 as punishment for not having made enough cases. (Doc. # 137-1 at
189:11–17.) A white agent, Mark Barber, was ranked lower overall than Taylor and had not
been assigned to the warehouse, but Barber had also made more cases than Taylor. (Doc. # 137-
27 at 3.)10 The Board’s practice of “preselecting individuals for promotion without an open and
competitive selection process,” and especially as this practice contributed to Chandler and
Wilson’s promotions in 2009, contributed to the overall racially hostile work environment. (Doc.
# 138 at 55–56; Doc. # 137-13 ¶ 20.) On June 9, 2009, Taylor was given a two-day suspension
for not reporting to his supervisor an unusual incident involving his girlfriend and ex-wife, but
Taylor had told his immediate supervisor, Hill, of the incident. (Doc. 137-13 ¶¶ 27–28.) Collins
told Taylor that Turner criticized Taylor’s work continually, but Turner never criticized Taylor
directly. (Doc. # 137-1 at 126:2–131:10.) In his deposition, Taylor stated that the November
2009 warning for having a dent in his state-issued vehicle’s door was harassment that contributed
to the racially hostile working environment. (Doc. # 137-1 at 70:4–23.) Taylor also says that,
while Turner supervised the office, she would not let the agents leave the office to make new
cases, but she still transferred Taylor to Dothan as discipline for not making enough cases. (Doc.
# 137-13 ¶¶ 39–42.) Taylor says he knew that Holston told Aaron that “he knew people thought
he was a ‘mole’ and [at District Ten] to ‘snitch’ on other employees.” (Doc. # 137-13 ¶ 33.)
Finally, Taylor says he was generally aware of how McKitt and Aaron were treated while Turner
was at District Ten and that this contributed to his personal racially hostile work environment.
(Doc. # 137-13 ¶¶ 32–37.)
Based on these allegations, Taylor has not argued a severely or pervasively hostile
environment as required by the Eleventh Circuit. Instead, the events complained of stretch over a
number of years, were sporadic, and are not specifically identified with evidence showing racial
animus. “Isolated incidents (unless extremely serious) will not amount to discriminatory changes
As the Board points out, on that page, Barber is listed at number 57 on the rankings sheet, but
he had made a total of twelve cases (seven alcohol cases and five drug cases). By contrast,
Taylor is listed at number 43 on the rankings sheet, but he made a total of eleven cases (five
alcohol cases, three tobacco cases, two “other” cases, and one store case).
in the ‘terms and conditions of employment.’” Faragher, 524 U.S. at 788. Furthermore, any
racial slurs made after he left the ABC Board cannot have contributed to his alleged racially
hostile work environment. Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1522 (11th Cir. 1995).
Moreover, Taylor has not shown how the harassment was objectively severe or pervasive. None
of the alleged statements were made towards Taylor, and thus they were not physically
threatening or humiliating. Taylor could not remember in his deposition whether Turner’s
actions interfered with his job. (Doc. # 137–1 at 410:2–415:22, 417:2–20.) There is no indication
of any of the other actions having unreasonably interfered with Taylor’s work. Taylor has not
identified any level of severity associated with any of the actions. Taylor has failed to show the
sufficiently severe or pervasive level of harassment necessary to have an objectively material
alteration in the terms or conditions of employment, and the Board’s Motion for Summary
Judgment on Taylor’s hostile work environment claim is due to be GRANTED.
e. Constructive Discharge
As a preliminary matter, Taylor’s constructive discharge claim was not timely raised in
an EEOC Charge. Taylor did not mention a constructive discharge until his October 5, 2010
Amended Charge with the EEOC. The October Amended Charge was significantly outside of the
180-day time period for filing with the EEOC. Moreover, the constructive discharge claim was
not “like or related to” the original EEOC complaint. Gregory, 355 F.3d at 1280. Instead, the
only facts that Taylor mentioned in his February 2010 Charge concerned the alleged
discrimination ending on December 8, 2009. There are no facts related to his subsequent
resignation. Thus, the Board would not have been on notice of the subsequent claim, the EEOC
could potentially have had additional success garnering voluntary compliance from both parties,
and the purpose of the filing requirement could still have been achieved. Strictly enforcing the
EEOC exhaustion requirements furthers Congress’ intent of “encourag[ing] the prompt
processing of all employment discrimination charges.” Mohasco Corp. v. Silver, 447 U.S. 807,
825 (1980); see also Beverly v. Lone Star Lead Constr. Corp., 437 F.2d 1136, 1139 (5th Cir.
1971)11 (stating “[w]e do not think the parties should be allowed to bypass [the administrative
remedies available from the EEOC]”). Thus, because the constructive discharge claim was not
reported to the EEOC until more than 180 days after the alleged discharge, the claim was not
Even if Taylor’s constructive discharge claim were not untimely, it would fail for other
reasons. “‘Constructive discharge occurs when an employer deliberately makes an employee’s
working conditions intolerable and thereby forces him to quit his job.’” Bryant v. Jones, 575
F.3d 1281, 1298 (11th Cir. 2009) (quoting Munday v. Waste Mgmt. of N. Am., Inc., 126 F.3d
239, 244 (4th Cir. 1997)). “A plaintiff must show ‘the work environment and conditions of
employment were so unbearable that a reasonable person in that person’s position would be
compelled to resign.’” Id. (quoting Virgo v. Riviera Beach Assoc., 30 F.3d 1350, 1363 (11th Cir.
1994)). Constructive discharge claims are more onerous to prove than hostile work environment
claims. Id.; see also Davis v. Dunn Constr. Co., 872 F. Supp. 2d 1291, 1319 (N.D. Ala. 2012)
(stating that, “because Plaintiff has failed to establish the existence of a hostile work
environment, he cannot as a matter of law establish that a constructive discharge occurred”). The
claim must be connected to some prohibited discrimination or retaliation. Cowan v. Jackson
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent all decisions of the Fifth Circuit, including Unit A, handed
down prior to October 1, 1981.
Hosp. & Clinic, Inc., 572 F. Supp. 2d 1286, 1292 (M.D. Ala. 2008). The court has held that
Taylor has failed to establish a racially hostile work environment within the requirements of the
In this case, Taylor has not shown that the work environment and conditions of his
employment were so unbearable that a reasonable person would have felt compelled to resign
under the same circumstances. Taylor argues that the pending transfer and its attendant financial
and personal difficulties forced him to resign. However, it is undisputed that Taylor never
emailed or spoke with Rogers about the hardships that would arise from the transfer. Taylor does
say he tried reaching Rogers on his cell phone once, but there is no indication that he tried any
other time. Moreover, he waited nearly two months after finding out about the transfer before
tendering his resignation. Finally, after turning his resignation letter in, he tried almost
immediately to rescind it. Based on these facts, Taylor did not act as though his employment
conditions were intolerable such that a reasonable person would not be able to remain at work.
Rather, and especially because he attempted to rescind his letter almost immediately, Taylor’s
conduct appears to be that of someone who wanted to continue working at the Board. Moreover,
Taylor’s hostile work environment claim fails. Thus, Taylor has not shown that the conditions of
his employment were so unbearable that a reasonable person would have felt compelled to
resign, and his constructive discharge claim fails.
2. Count X
In Taylor’s tenth count of his Second Amended Complaint, entitled “Plaintiff Stacy D.
Taylor’s Title VII Claims of Retaliation for Opposing Discrimination by Complaining of
Discriminatory Job Assignments, Promotions, Termination, and Discipline against ABC Board”,
he alleges that he “was retaliated against for opposing race discrimination by being subjected to
discriminatory job assignments, discipline, jobs and work assignments, transfers, termination,
and all other terms or conditions of employment.” (Doc. # 6 at ¶ 202.) For the following reasons,
the ABC Board’s Motion for Summary Judgment on Taylor’s tenth count is due to be
a. Taylor’s retaliation claim was not timely raised with the EEOC.
The most proximate protected action to the end of Taylor’s employment with the Board
was the filing of the first EEOC charge, and there was no mention in that Charge of any
retaliation claim based on anything earlier. Furthermore, Taylor’s Amended Charge was too late
for raising the acts surrounding his resignation and refusal to let him withdraw it. As such,
Taylor’s retaliation claim was not timely raised with the EEOC. However, even if Taylor’s
retaliation claim were timely, it would fail for other reasons.
b. Taylor has not shown that Turner or Rogers knew of the EEOC intake
questionnaire prior to Taylor’s notice of transfer and subsequent resignation.
Taylor has failed to show that Turner or Rogers knew of the EEOC intake questionnaire
prior to Turner advising him that he would be transferred to Dothan, Rogers’ agreement to the
transfer, and Taylor’s subsequent resignation. “In order to show [the protected conduct and the
adverse employment action] were not entirely unrelated, the plaintiff must generally show that
the decision maker was aware of the protected conduct at the time of the adverse employment
action.” Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000). “A decision
maker cannot have been motivated to retaliate by something unknown to him.” Id. In this case,
the only evidence that has been presented is that Goolsby knew about the intake questionnaire
but did not tell Turner or Rogers, the decision-makers. Taylor has not presented any evidence,
direct or circumstantial, to counter this evidence. Finally, it is worth noting that Taylor implies
that he is not accusing Turner or Rogers of retaliation at all; instead, he only mentions that he is
accusing Goolsby of retaliation. (Doc. # 138 at 2.) There is no evidence, however, that Goolsby
was involved in the transfer decision, which led to Taylor’s resignation. As such, because Taylor
has not shown that Turner and Rogers knew of the intake questionnaire prior to directing his
transfer and Taylor’s resignation, he has not shown that any protected conduct and the alleged
adverse employment action were in any way related. Thus, Taylor’s retaliation claim on his
transfer order and resignation must fail.
c. Taylor’s complaint to Hill was too temporally distant from the first alleged
discriminatory act to show causation.
Taylor argues that the Board undertook allegedly adverse employment actions against
Taylor because of a verbal internal complaint to Hill. Taylor complained verbally to Hill in
December of 2008 that he was being discriminated against because of his race. However, the
first allegedly retaliatory act occurred when he was suspended approximately six months later.
This long time span defeats causation. Because the first alleged retaliatory act was more than
three months after the protected conduct, and because all of the other alleged retaliatory acts
naturally occurred more than three months after Taylor’s protected conduct, Taylor cannot show
causation, and his retaliation claim for his complaint to Hill fails. Thomas, 506 F.3d at 1364.
d. Taylor cannot show that, but for his protected conduct, he would not have been
subjected to the allegedly adverse employment actions.
Turner has failed to submit evidence from which a reasonable jury could conclude that
any of the allegedly adverse employment actions would not have taken place but for protected
activity occurring before the action. Nassar, 133 S. Ct. at 2534. Therefore, Taylor’s Title VII
retaliation claim fails.
B. Taylor’s § 1981 Claims
Courts use the same McDonnell Douglas burden-shifting for § 1981 claims as it does for
Title VII claims. Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).
Violations of § 1981 require a showing of discriminatory intent. Dunklin v. Montgomery Cnty.
Bd. Of Educ., 652 F. Supp. 2d 1226, 1235 (M.D. Ala. 2009).
1. Count XI
In Taylor’s eleventh count of his Second Amended Complaint, entitled “Plaintiff Stacy
D. Taylor’s Claims of Race Discrimination and Racial Harassment in Violation of the Fourteenth
Amendment and 42 U.S.C. § 1981 (Asserted via 42 U.S.C. § 1983) against Chief Jeff Rogers,
Stan Goolsby, Jean Turner and Kenneth Davis in their Individual Capacities”, he alleges that
“Chief Rogers, Jean Turner and Stan Goolsby engaged in race discrimination and racial
harassment of Plaintiff Stacy D. Taylor.” (Doc. # 6 ¶ 204.) Goolsby and Davis have since been
dismissed from this case in their individual capacities. (Doc. # 26.) As such, the claim only
applies to Turner and Rogers. For the following reasons, the ABC Board’s Motion for Summary
Judgment on Taylor’s Count XI is due to be GRANTED.
a. Taylor’s Response to the Board’s Motion for Summary Judgment is an
inappropriate place for trying to reinstate Goolsby as an individual
Taylor attempts to reinstate Goolsby as an individual defendant through his Response
Brief to the Board’s Motion for Summary Judgment. “[A] plaintiff cannot amend his complaint
through argument made in his brief in opposition to the defendant’s motion for summary
judgment.” Miccosukee Tribe, 716 F.3d at 559. “‘At the summary judgment stage, the proper
procedure for plaintiffs to assert a new claim is to amend the complaint in accordance with Fed.
R. Civ. P. 15(a).’” Id. (quoting Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286,
1297 (11th Cir. 2006)). As stated in Miccosukee Tribe, Taylor’s attempt to amend his complaint
through his brief is invalid. Furthermore, the time for amending the pleadings expired in 2012.
(Doc. # 46 at 2.) Finally, this court sees no reason to allow Taylor’s request to stand; he has
waited until almost two years after Goolsby was dismissed and more than two months after
Goolsby was deposed. Furthermore, Taylor has not offered any excuse for his delay. Finally, he
waited until two months prior to the first date of trial to ask the court to reinstate Goolsby. This is
not the kind of diligence that might allow for an amended pleading after the deadline for adding
parties has passed. Romero v. Drummond Co., 552 F.3d 1303, 1319 (11th Cir. 2008). Thus,
Taylor’s attempt at reinstating Goolsby in this case fails.
b. Taylor does not contend that there is any claim against Turner for a
discriminatory failure to promote or discriminatory work assignments, nor
has he shown any evidence linking Turner to his June 2009 suspension.
In the Second Amended Complaint, Taylor raised failure to promote and discriminatory
work assignment § 1981 claims against Turner in her individual capacity through § 1983. (Doc.
# 6 ¶ 204.) Taylor has failed to present any evidence that would justify considering this claim.
Moreover, in his brief, Taylor writes that he “voluntarily dismisses any promotion claim against
Lieutenant Turner to the extent [the] complaint can be construed to contain one." (Doc. # 138 at
43.) Furthermore, he writes that he dismisses this claim because “it is undisputed that Chief
Rogers made the decision to assign the supervisory duties at issue in these claims.” (Id.) Finally,
as the Board points out, Taylor does not provide any evidence that Turner was involved with his
driving or warehouse assignments. In fact, the only evidence presented shows that the warehouse
assignments were given by Hill. (Doc. # 137-1 at 44:12–20.) In addition, Hill was Taylor’s
supervisor when Taylor was assigned to drive the African-American captain and when Taylor
complained about driving the African-American senator. (Doc. # 137-1 at 289:13–17; 62:1–4.)
There is no evidence linking Turner to these assignments. Thus, Turner is entitled to summary
judgment for both the failure to promote and discriminatory work assignments claims in this
Furthermore, Taylor presents no evidence linking Turner to the June 2009 suspension for
failing to report an unusual incident. A plaintiff must show that the state actor defendant was
causally linked to the discrimination. See Page v. Winn-Dixie Montgomery, Inc., 702 F. Supp. 2d
1334, 1355–56 (S.D. Ala. 2010). Because Taylor has not presented any evidence of a link
between Turner and his suspension in response to the Board’s showing that Turner was not
involved with the decision in any way, Taylor’s § 1983 claim against Turner for the
discriminatory suspension fails.
c. Taylor’s other discriminatory discipline claims against Turner fail.
For the same reasons discussed above, Taylor’s other discriminatory discipline claims
fail, and thus they also fail as against Turner. In particular, Taylor did not identify any adequate
comparators that were treated more favorably. In addition, in several instances, Taylor did not
argue or adequately show an adverse employment action. Moreover, Taylor has not argued or
pointed to any evidence indicating racial animus when Turner was making her disciplinary
decisions. Finally, Taylor has not rebutted Turner’s legitimate, nondiscriminatory reasons for the
discipline: such as, for example, the low number of cases made by Taylor. Because Turner’s
reasons for disciplining Taylor were legitimate and nondiscriminatory, the burden shifts to
Taylor to show that the proffered reasons were pretext. However, Taylor does not present any
argument contesting the validity of the Board’s proffered statistics. Thus, the undisputed
evidence is that Taylor made fewer cases than Barber. Moreover, Taylor does not argue against
any of Turner’s other reasons for disciplining Taylor.
For all of these reasons, Taylor’s other discriminatory discipline claims fail, and Turner is
entitled to summary judgment on all claims under Count XI.
d. Taylor has not shown any racial intent in connection to his discriminatory
driving and warehouse assignments claims.
Taylor fails to show any racial intent in arguing his discriminatory work assignments
claim, including with regards to Rogers. As discussed above, the undisputed evidence is that all
ABC agents, regardless of race, have to work in the ABC warehouse for security reasons and
undertake driving assignments. Taylor has not presented any evidence of discriminatory
treatment by Rogers. Apart from bald assertions, he does not point to any evidence of more
favorable treatment for white agents in making such assignments. He has not shown any
evidence of white workers having to work less in the warehouse than him or having to drive less
than him. Thus, in the face of Rogers’ well-supported Motion for Summary Judgment, Taylor
has failed to connect any of the alleged discriminatory work assignments with any indication of
racial animus, and his § 1981 claim against Rogers for discriminatory work assignments fails.
1. Taylor has not rebutted Chief Rogers’ legitimate, nondiscriminatory reason for the
Rogers says that he provided additional duties to Chandler and Wilson because of their
respective levels of expertise. In particular, Wilson had experience with managing the Board’s
equipment needs. Also, Chandler had experience with information services, and, to Rogers,
Chandler was the type of agent who consistently showed initiative and drive. (Doc. # 137-5 at
112:17-22.) Based on these reasons, Rogers assigned them additional duties to cover for a
vacancy created when Phillip Calvert was reassigned to a new position in a different office. In
contrast with these arguments, Taylor only states that Rogers manipulated the system when he
wanted a promotion to be made. While arguably true, this contention does not specifically
address Rogers’ legitimate, nondiscriminatory reason. Chapman, 229 F.3d at 1030. Furthermore,
Taylor has not presented any evidence that the real reason Rogers did not give the work
assignments to Taylor was race discrimination. He has not shown that African-Americans with
similar qualifications did not receive similar treatment.12 As such, even if he might somehow be
able to show that the proffered reason was false, he cannot show that race discrimination was the
real reason. Reeves, 530 U.S. at 148–49.
Taylor mentions a promotion that occurred after he resigned as being evidence of pretext.
However, all Taylor says is that this agent, Roberts, was promoted without an open and
competitive process and that the agent was promoted due to Rogers giving him a title on his
application. This reasoning is both unsupported by evidence and of minimal importance to
Taylor’s other assignments claims. First, there is no evidence that Roberts was promoted because
he was able to list a higher title on his application. Taylor has presented no evidence of how
Roberts’ application was graded or what factors went into the decision to promote him. Second,
even if the SPD did promote Roberts based on this title, Taylor still has not demonstrated that
racial discrimination was the real reason that Rogers gave Roberts this title. Thus, as a result, this
argument is both unsupported by evidence and of minimal importance, and as such Taylor’s
argument for pretext fails.
2. For the same reasons as his Title VII claim, Taylor’s § 1983 claim against Rogers for the
discriminatory 2009 suspension fails.
Taylor does point out that, on the Certificate of Eligibles where Chandler was promoted from
sergeant to lieutenant and on the Certificate where Wilson was promoted from sergeant to
lieutenant, both Chandler and Wilson were last on the list while an African-American was at the
top of the list. This still fails to show any racial animus in choosing Wilson and Chandler over
Taylor. Their relative levels of experience were exact matches for what Rogers wanted in the
positions. Ultimately, the same final issue applies: Taylor was not on the Certificate of Eligibles,
he has not shown any evidence that he would have been under any circumstances, and as such he
cannot show that Rogers discriminated against him.
As discussed above, Taylor has not satisfied the prima facie case for his 2009
discriminatory suspension claim. Taylor has not identified any valid comparators, much less ones
outside of the protected class who received more favorable treatment. Because Taylor has not
met his prima facie case for discriminatory discipline with his 2009 suspension, Taylor’s § 1983
claim against Chief Rogers fails, and Rogers’ Motion for Summary Judgment on that claim is
due to be GRANTED.
3. Taylor’s other disparate discipline claims against Rogers fail.
Taylor has not shown any evidence of intentional race discrimination in any of Rogers’
disciplinary decisions. As a result, Taylor fails to link race discrimination and Rogers’ decision
to approve the December 2009 transfer, and this claim fails. Furthermore, Taylor has not
provided any evidence that Rogers was involved in any way with the November 2009 written
warning concerning Taylor’s state-issued vehicle. Finally, Taylor has not provided any evidence
of Rogers’ involvement with the December 2009 warning for Taylor’s failure to perform his job.
Because Rogers moved for summary judgment on these issues, and because Taylor did not
present any evidence to counter Rogers’ well-supported arguments, Rogers’ Motion for
Summary Judgment on his disparate discipline claims is due to be GRANTED.
e. The court assumes that Taylor’s promotion claim against Rogers is not
barred by the four-year statute of limitations assumed to be applicable to this
Claims against state actors for violations of § 1981 must be brought through § 1983.
Baker v. Birmingham Bd. of Educ., 531 F.3d 1336, 1337 (11th Cir. 2008). A two-year limitations
period applies to § 1983 actions in Alabama. Id. (citing Jones v. Preuitt & Mauldin, 876 F.2d
1480, 1483 (11th Cir. 1989)). But, “a four-year statute of limitations applies to ‘civil action[s]
arising under an Act of Congress enacted after’ December 1, 1990.” Id. (quoting 28 U.S.C. §
1658(a)) (alteration in original). If a § 1981 claim was made possible through the enactment of
the 1991 amendments to § 1981, then those claims are governed by the four-year statute of
Without analyzing this issue, the court will assume, without deciding, for the purpose of
resolving this motion, that the four-year statute applies.
f. Taylor’s promotion claim against Rogers concerning Wilson and Chandler
Although the court assumes that Taylor’s § 1981 promotion claim against Rogers is not
time-barred, it fails for other reasons. The analytical framework and elements of claims under §
1981 are identical to those of Title VII. Standard, 161 F.3d at 1330. First, Taylor’s claim fails
because he has not presented any evidence of racial animus in deciding to promote Chandler and
Wilson. Specifically, Taylor has not argued or offered any evidence supporting a finding that the
Chandler and Wilson were promoted because they are white. Taylor also has not shown evidence
supporting a finding that he was not promoted because he is African-American. To the contrary,
and as discussed above with Chandler and Wilson’s assignments, Rogers proffered Chandler and
Wilson’s relative qualifications as legitimate, nondiscriminatory reasons for assigning different
duties. For the same reasons that Rogers assigned duties to Chandler and Wilson, he also
promoted them to sergeants. Because Taylor has not rebutted the legitimate, nondiscriminatory
reasons for Rogers assisting with Chandler and Wilson’s promotions, and because Taylor has not
shown any racial animus with these promotions, Taylor’s claim fails.
2. Count XII
In Taylor’s Count XII of the Second Amended Complaint, entitled “Plaintiff Stacy D.
Taylor’s Claims of Retaliation in Violation of  42 U.S.C. [§] 1981 (Asserted via 42 U.S.C. §
1983) against Chief Jeff Rogers, Jean [Turner], and Stan Goolsby in their Individual Capacities”,
he alleges “Chief Jeff Rogers, Jean Turner and Stan Goolsby [violated 42 U.S.C. § 1981] by
retaliating against Plaintiff Taylor in discipline, job assignments, strict scrutiny and constructive
discharge.” (Doc. # 6 ¶ 206.) Goolsby has since been dismissed from this case in his individual
capacity. (Doc. # 26) As such, the claim only applies to Turner and Rogers. In his brief, Taylor
asserts that he is accusing Turner and Rogers of intentional discrimination, but only Goolsby of
retaliation. (Doc. # 138 at 2.) Furthermore, Taylor points to no other evidence, nor does he make
any argument, accusing Rogers or Turner of retaliation. Thus, Taylor has failed to meet his
burden on his retaliation claims against Rogers and Turner, and their Motions for Summary
Judgment on Taylor’s Count XII is due to be GRANTED.
The court has carefully considered the voluminous briefs and evidence submitted by all
parties. Having done so, while there are disputes as to some facts, the court concludes that the
Defendants have established that there is no genuine dispute as to any material fact and that all
Defendants are entitled to judgment as a matter of law.
For the reasons discussed, the Defendants’ Motions for Summary Judgment are
Done this 23rd day of September, 2013.
/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE
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