Adams v. The City of Montgomery

Filing 90

MEMORANDUM OPINION AND ORDER GRANTING 33 AND 70 MOTIONS for Summary Judgment; all of Mr. Adams's Title VII and 1981 and 1983 discrimination and retaliation claims against all defendants are DISMISSED, as further set out in order. Signed by Chief Judge William Keith Watkins on 9/27/13. (Attachments: # 1 civil appeals checklist)(djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
WILLIE ADAMS,
Plaintiff,
v.
CITY OF MONTGOMERY,
Defendant.

WILLIE ADAMS,
Plaintiff,
v.
CITY OF MONTGOMERY, et al.,
Defendants.

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CASE NO. 2:11-CV-1122-WKW
(LEAD CASE)
(WO)

CASE NO. 2:12-CV-523-WKW
(MEMBER CASE)1
(WO)

MEMORANDUM OPINION AND ORDER
Plaintiff Willie Adams complains of race-based employment discrimination
and retaliation in violation of Title VII of the Civil Rights Act of 1964 and the
Civil Rights Acts of 1866 and 1871, 42 U.S.C. §§ 1981 and 1983. Before the court
are Defendants City of Montgomery, Gail Gipson, and James Ivey’s original and
supplemental motions for summary judgment. (Docs. # 33, 70.) The motions for
1

Plaintiff Willie Adams filed two suits: Case No. 2:11-cv-1122-WKW, against
Defendant City of Montgomery, and Case No. 2:12-cv-523-WKW, against the City and two City
employees, Defendants Gail Gipson and James Ivey. Because the cases involve overlapping
facts and claims, the court consolidated the two actions. (Doc. # 29.)

summary judgment have been fully briefed. (Docs. # 34, 35, 36, 37, 71, 72, 75,
76.) After considering the parties’ arguments, the relevant law, and the evidence,
the court finds that Defendants’ motions are due to be granted.
I. JURISDICTION AND VENUE
The court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331
and 1343 and 42 U.S.C. § 2000e-5(f)(3). The parties do not contest personal
jurisdiction or venue.
II. STANDARD OF REVIEW
To succeed on summary judgment, the movant must demonstrate “that there
is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). The court must view the evidence and
the inferences from that evidence in the light most favorable to the nonmovant.
Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).
The party moving for summary judgment “always bears the initial
responsibility of informing the district court of the basis for its motion.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986).

This responsibility includes

identifying the portions of the record illustrating the absence of a genuine dispute
of material fact. Id. A genuine dispute of material fact exists when the nonmoving
party produces evidence allowing a reasonable factfinder to return a verdict in its
favor. Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir.
2

2001).

If the movant meets its evidentiary burden, the burden shifts to the

nonmoving party to establish – with evidence beyond the pleadings – that a
genuine dispute material to each of its claims for relief exists. Id. at 324.
III. BACKGROUND
A.

Facts
1.

Parties, Past Claims, and Prior Litigation History

Mr. Adams, who is black, first worked for the City from September 2003 to
August 2004. On August 10, 2007, the City re-hired Mr. Adams as a temporary
employee to work on an asphalt crew. It later hired him as a permanent employee
(Service Maintenance Worker I) on February 8, 2008. Since February 25, 2009,
Mr. Adams has been employed as an Equipment Operator (truck driver), a position
which requires the use of his CDL license. His duties include driving a City dump
truck and hauling equipment and materials for City concrete crews.
Mr. Ivey was formerly Mr. Adams’s supervisor when Mr. Adams worked on
an asphalt crew. Mr. Ivey is now Superintendent over all asphalt crews.2 Ms.
Gipson is the Director of the City’s Maintenance Department. She has made
numerous personnel decisions at issue in this suit, including deciding whether to
hire, promote, or transfer Mr. Adams and others.

2

It is unclear why Mr. Ivey is a defendant in this suit. When asked how Mr. Ivey had
retaliated against Mr. Adams, Mr. Adams responded that Mr. Ivey had “nothing to do with this
case.” (Doc. # 76-1, at 10 (emphasis added).)
3

Before filing this suit, Mr. Adams previously has complained that the City
discriminated against him on account of his race and retaliated against him for
engaging in protected activity. On the basis of alleged events in 2007 and 2008,
Mr. Adams filed his first Equal Employment Opportunity Commission (“EEOC”)
charge in June 2008. (Doc. # 35-1, at 1.) He later initiated a federal lawsuit in
October 2010. See Adams v. City of Montgomery, Case No. 2:10-cv-924-MHT.
At issue in the first suit were Mr. Adams’s claims that: (1) the City discriminated
against him by not re-hiring him as a Service Maintenance Worker III in 2008; (2)
the City discriminated against him by not hiring him as a truck driver in November
2007; (3) the City discriminated against him by reprimanding and suspending him
in May, August, and September 2008; and (4) the City retaliated against him by
reprimanding and suspending him and transferring him from the asphalt crew to
the ditch crew in 2008. See Adams v. City of Montgomery, Case No. 2:10-cv-924MHT (M.D. Ala. Apr. 24, 2012). Many of Mr. Adams’s previous claims against
the City involved Mr. Ivey’s alleged discriminatory conduct, although Mr. Ivey
was not a party in the first suit. All claims raised in the first suit have been
adjudicated at summary judgment or at trial in the City’s favor.
The claims in the first suit are somewhat similar to but distinct from the
claims asserted in this action. Even so, the first EEOC charge and first lawsuit are

4

relevant here for purposes of analyzing the timing and frequency of Mr. Adams’s
engagement in protected activity and Defendants’ allegedly retaliatory actions.
2.

Allegations at Issue in This Suit

On April 24, 2008, the Montgomery City County Personnel Board posted an
announcement for a Construction Equipment Operator.3

4

The announcement

listed as a minimum qualification that applicants possess at least three years’
experience operating at least three pieces of certain heavy equipment. (Doc. # 3510, at 8–9.)

Mr. Adams applied.

The Personnel Board requested additional

information from Mr. Adams, who apparently did not respond. It sent Mr. Adams
a letter on May 23, 2008, stating that he was ineligible for the Construction
Equipment Operator position because he did not meet the minimum qualification
requirements. (Doc. # 36-2, at 1.)
Five days later on May 28, 2008, Mr. Adams filed an internal complaint
with the City about a different matter, alleging that Mr. Ivey discriminated against
him on the basis of Mr. Adams’s race. (Doc. # 36-3.) His first EEOC charge,
alleging race discrimination, followed in June 2008.

3

The Personnel Board, which is not a party, serves as the personnel department for the
City and other governmental entities. The Personnel Board posts announcements for open
positions and qualifies applicants for employment.
4

Neither complaint identifies this claim of non-promotion. During discovery Mr. Adams
identified this as a position for which the City denied him a promotion. He identified it as
“Heavy Equipment Operator.” (See, e.g., Doc. # 37-4, at 9.)
5

On May 30, 2008, apparently unbeknownst to Mr. Adams, the City upgraded
Jerome Pernell, a black male, who had substantial seniority over Mr. Adams, from
Service Maintenance Worker to a Labor Foreman I position without posting an
announcement for the position. (Doc. # 70, at 4.)5 The Personnel Board’s rules
permit Service Maintenance Workers to promote one classification level to Labor
Foreman I or Equipment Operator positions without being certified by the Board
and without the Board opening a competitive register for the position. (See Doc.
# 34, at 20.)
On October 23, 2008, Mr. Adams wrote a letter to Ms. Gipson to inform her
that he felt harassed and singled out for filing his discrimination complaint against
Mr. Ivey. (Doc. # 75-9.)
In February 2009, Mr. Adams applied to the Personnel Board for a
promotion to a vacant position as Labor Foreman I. Defendants represent that the
Personnel Board ranked Mr. Adams as number five of the best five applicants for
the position. The Maintenance Department selected Edward Thomas in April
2009, who tied for number three with another applicant. (See Doc. #36-7, at 2

5

Neither complaint identifies this particular action; the City disclosed Mr. Pernell’s
promotion during discovery in response to Mr. Adams’s allegations that the City had overlooked
him for vacant Labor Foreman I or Equipment Operator positions from August 2007 through
March 2009. (See Doc. # 70 at 1–2.)
6

(listing Mr. Thomas as 4th and Mr. Adams as 5th).)6 Defendants cite Mr. Adams’s
inferior experience as the reason it selected Mr. Thomas. About the same time,
however, in late February 2009, Mr. Adams was promoted to his current position
as an Equipment Operator.
In February 2010, the City upgraded Gerone Hall from a Service
Maintenance Worker position to Labor Foreman I, just as it had upgraded Jerome
Pernell in 2008. Defendants represent that, because Mr. Adams was already an
Equipment Operator at this time in 2010, and no longer a Service Maintenance
Worker, Mr. Adams could not be upgraded to a position that Mr. Hall took without
the Personnel Board posting a vacancy and creating a competitive register.7
Mr. Adams initiated his second EEOC charge at the beginning of March
2010 (see Doc. # 75-10 (EEOC Intake Questionnaire received March 11, 2010)),
asserting that the City denied him the promotion to Labor Foreman I “[f]or the last
six months including as recent[ly] as February 8, 2010” because of his previous
engagement in protected activity. The EEOC notified the City of Mr. Adams’s
pending EEOC charge on March 23, 2010. (Doc. # 75-11 at 2.) The EEOC
6

According to the complaint, Mr. Adams’s present supervisor, Roger Orum reportedly
told Mr. Adams, “[Y]ou know they won’t let me give you the job.” (Doc. # 1, at 3 ¶ 14.) This
comment, or anything like it, is not cited as testimonial evidence in Mr. Adams’s opposition
brief.
7

It is not clear how a Labor Foreman I position is a higher classification than an
Equipment Operator position if both Labor Foreman I and Equipment Operator are one
classification above Service Maintenance Worker. It turns out that the answer is not important to
the disposition of this case.
7

received Mr. Adams’s official second charge on April 9, 2010. (See Doc. 35-3 at
1.)

It only alleges retaliation.

(Doc. # 35-3 at 1 (indicating only

“RETALIATION” and stating, “I believe I have been denied the promotion [to
foreman] in retaliation for filing a previous charge against the employer”).) About
the same time that Mr. Adams was making his second EEOC charge alleging
retaliation, the EEOC issued its determination on his first charge on March 31,
2010, finding that it was more likely than not that the City had discriminated
against Mr. Adams on the basis of race and in retaliation for complaining about
discrimination. (Doc. # 75-12, at 3.)
In September 2011, Mr. Adams applied for a different Equipment Operator
position with the City when he became aware that there were two vacancies for
truck drivers on the asphalt crew. Mr. Ivey supervised Equipment Operators on the
asphalt crew, and Mr. Adams has alleged in the past the Mr. Ivey discriminates
against blacks. According to the complaint, Ms. Gipson hired one white man who
transferred from the Maintenance Department, and one black man, who had
recently finished his six-months’ probationary period and who had never
complained about discrimination. (Doc. # 1, at 3 ¶ 16; 2:12-CV-523-WKW Doc.
# 1, at 5–6 ¶ 22–23.)8

8

The race of the two men hired to these positions is not identified in the evidence. Ms.
Gipson testified that the two men that she placed in the positions were promoted one level from
Service Maintenance Worker positions. (Doc. # 75-15 at 13.)
8

Defendants assert that the two positions Mr. Adams sought are also
equipment operator positions, like his present position, and therefore, he sought
lateral transfers and not promotions. Whether he was an equipment operator on a
concrete crew or an asphalt crew, Mr. Adams would have enjoyed the same hours,
pay, and general responsibilities. The only difference is that on the asphalt crew,
Mr. Adams would drive a larger tandem truck and would answer to a different
superintendent – Mr. Ivey – whom Adams has alleged is racially prejudiced. Ms.
Gipson has explained that she denied Mr. Adams’s request to transfer “because, if
he was transferred, he would [have] be[en] supervised by James Ivey who [Mr.]
Adams has alleged racially discriminated against him” in the past, (Doc. # 36-10 at
1), and because “Mr. Adams would derive no benefit from [the] transfer with no
change in benefits, pay[,] or hours.” (Doc. # 75-16, at 2.)
On September 22, 2011, Mr. Adams requested that the EEOC issue a notice
of right to sue on his second charge against the City. (Doc. # 75-14, at 2 (“By email dated [September 22, 2011 Mr. Adams’s] attorney requested the issuance of a
NRTS.”).) On September 30, 2011, at Mr. Adams’s request, the EEOC issued him
a “Notice of Right to Sue” letter on his second EEOC charge. (Doc. # 35-4, at 1.)
Although Defendants represent that their copy of the notice is date stamped, no
stamp is discernible on the copy furnished to the court. (See Doc. # 35-4, at 1.)
An Administrative Secretary at the City’s Legal Department, Eva Anthony, avers
9

in an affidavit that she received the copy of the notice on Wednesday, October 5,
2011, at 10:15 a.m. (Doc. #76-3, at 1.)9
About a week earlier, “[o]n or around [Thursday,] September 29, 2011,”
(Doc. # 36-11, at 1), a concerned citizen called Gale Harwell, executive secretary
to Deputy Mayor Jeff Downes, to report marijuana odor originating from a City
truck. Defendants claim that the citizen provided the truck’s number, 5815-2405.
Ms. Harwell stated at her deposition that she could not remember the number
provided, but that she wrote it down as she spoke with the caller. (Doc. # 75-18,
at 5.) Ms. Harwell forwarded the information to Chris Conway, Director of Public
Works, who directed Ms. Gipson to investigate. On Monday, October 3, 2011,
Ms. Gipson directed Mr. Adams’s supervisor, Mr. Orum, to travel to the truck’s
location to confront Mr. Adams. 10 Mr. Adams theorizes that Ms. Gipson became
aware of his intent to sue and “decided to use this anonymous complaint as a
pretext for having Adams drug tested, in the hopes that he would test positive and,
thereby, be terminated.” (Doc. # 75, at 32.)
Mr. Adams says that when Mr. Orum confronted him about the caller’s
information, Mr. Orum said that the caller identified marijuana odor emanating

9

At the pretrial hearing, the court examined the original stamped document, and the date
and time are correct.
10

None of Defendants’ evidence contradicts Mr. Adams’s assertion that he was drug
tested on Monday, October 3, 2011. This is the same date he identified in his charge filed with
the EEOC (Doc. # 35-5, at 2.)
10

from 5815-2407. Mr. Adams told Mr. Orum that he drove truck number 58152405, not truck number 5815-2407. (Docs. # 75-13, at 7.) Mr. Orum asked Mr.
Adams who else had been in the truck on September 29 at the time in question.
Mr. Adams told Mr. Orum that only he (Mr. Adams) and a black foreman11 were in
the truck at that time. (Doc. # 37-2, at 1.) At the direction of Mr. Orum and Ms.
Gipson, Mr. Adams and the foreman were subjected to drug and alcohol testing
including urinalysis, breathalyzer, and hair testing. Mr. Adams insinuates that it is
telling that Defendants tested Mr. Adams but not the entire crew assigned to his
truck, (Doc. # 75, at 29), but Mr. Adams is the one who said that only he and the
foreman were in his truck. Mr. Adams and the foreman both passed the tests, and
Defendants took no further action.
The Maintenance Department’s Policy Manual provides that an employee
should be screened for drugs or alcohol “[i]f there is reasonable suspicion to
believe” he or she uses or is under the influence of drugs or alcohol “while
working for the City.” (Doc. # 37-3, at 14.) “Circumstances which provide a basis
for determining reasonable suspicion may include . . . [i]nformation concerning
recent drug or alcohol use by the employee from a reliable and credible source.”

11

Not to be confused with Roger Orum, the supervisor, Arthur Orum was the other
employee with Mr. Adams in the truck. (Doc. # 37-2, at 1.) All references to “Mr. Orum” are
references Roger Orum.
11

(Doc. # 37-3, at 13–14. (emphasis added).)12 The policy further provides that
“[s]upervisors are required to specify in writing the exact facts, symptoms, and/or
observations of drug or alcohol use. Any corroboration by other sources, which
formed the basis for a reasonable suspicion, must also be documented.” (Doc.
# 37-3, at 14.) Defendants have produced no “writing,” as required by the Policy
Manual, substantiating the suspected drug or alcohol use. Ms. Gipson explains that
this is because Mr. Orum, as Mr. Adams’s supervisor, “was not the one [who]
reported” the alleged drug use. (Doc. # 75-15, at 24.)
Within days of being subjected to drug and alcohol testing, Mr. Adams filed
his third EEOC charge on October 12, 2011, alleging race discrimination and
retaliation.

In the charge, he complained specifically about denial of his

application to promote to foreman in 2010, denial of his request to transfer to
vacant truck driver positions in 2011 in spite of his seniority, and his subjection to
drug and alcohol testing when other City truck drivers were not tested. (Doc. # 355, at 1–2.)

12

Mr. Adams neglects to cite the emphasized language and instead focuses on the
absence of other circumstances like “direct observation of drug or alcohol use, presence of
physical symptoms consistent with drug or alcohol use i.e. alcohol odor, slurred speech, poor
coordination and/or reflexes, and abnormal or erratic behavior by the employee.” (Doc. # 75, at
29.) There is no dispute that Mr. Adams has not been observed using drugs or alcohol at work or
manifesting characteristics of a person under the influence of drugs or alcohol.
12

B.

Procedural History
On December 29, 2011, Mr. Adams filed the instant suit against the City

(Civil Action No. 2:11-CV-1122-WKW), alleging race discrimination and
retaliation in violation of Title VII and 42 U.S.C. §§ 1981 and 1983. On June 20,
2012, he filed another case against the City, Ms. Gipson, and Mr. Ivey (the
“Individual Defendants”) (Civil Action No. 2:12-CV-523-WKW). The complaint
filed in the second suit alleges that the Individual Defendants are liable for race
discrimination and retaliation in violation of §§ 1981 and 1983. (Civil Action No.
2:12-CV-523-WKW, Doc. # 1, at 8.) The parties jointly moved to consolidate the
cases.
Defendants filed a motion for summary judgment on February 22, 2013
(Doc. # 33), along with their brief and evidence, (Docs. # 34, 35, 36, and 37). Mr.
Adams requested more time to respond, pursuant to Federal Rule of Civil
Procedure 56(d), and he was granted an extension until the end of March. He
sought more time again, and the court extended the response deadline until June 5,
2013. Then, there was a barrage of discovery motions, which the magistrate judge
resolved on May 31, 2013.

The same day, the magistrate judge granted

Defendants until August 1, 2013, to supplement their motion for summary
judgment to address additional issues that had arisen since the filing of the original
motion. (See Doc. # 70, at 2.) Defendants filed their supplemental motion and
13

brief. (Docs. # 70, 71.) After receiving another short extension of time, Mr.
Adams filed his first and only response to Defendants’ motions. (Doc. # 75.)
Defendants have replied. (Doc. # 76.)
IV. DISCUSSION
Title VII of the Civil Rights Act of 1964 prohibits employers from
“discriminat[ing] against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race.” 42
U.S.C. § 2000e-2(a)(1). It further prohibits employers from retaliating against an
employee “because he has opposed any practice made an unlawful employment
practice by [Title VII], or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing
[thereunder].” Id. at § 2000e-3(a).
The Civil Rights Act of 1866, or Section 1981, guarantees “all persons . . .
the same right . . . to make and enforce contracts . . . as is enjoyed by white
citizens,” and it also protects against race-based employment discrimination and
retaliation. The Civil Rights Act of 1871, or Section 1983, prohibits state actors
from acting in violation of federal law. “[Section] 1981 does not provide [a] cause
of action against state actors; therefore, § 1983 constitutes the exclusive federal
remedy for violation by state actors of the rights guaranteed under § 1981.” Bryant
v. Jones, 575 F.3d 1281, 1288 n.1 (11th Cir. 2009). Accordingly, Mr. Adams’s
14

§ 1981 and § 1983 claims against Defendants “merge” into a single claim. Vason
v. City of Montgomery, Ala., 240 F.3d 905, 906 n.1 (11th Cir. 2001)).
“Both [Title VII and § 1981] have the same requirements of proof and use
the same analytical framework.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318,
1330 (11th Cir. 1998). Hence, courts “need not discuss [a] plaintiff’s Title VII
claims separately from his section 1981 and section 1983 claims” when all claims
“are based on the same set of facts.” Crawford v. Carroll, 529 F.3d 961, 970 (11th
Cir. 2008).
Where, as here, there is no direct evidence of unlawful race-based
discrimination or retaliation, the plaintiff typically must use the burden-shifting
framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to
show indirect evidence of discrimination. See Brown v. Ala. Dep’t of Transp., 597
F.3d 1160, 1174, 1181 (11th Cir. 2010).

Under the McDonnell Douglas

framework, the plaintiff must first make a prima facie case of discrimination or
retaliation. He makes a prima facie case of discrimination by demonstrating that:
“(1) [he] is a member of a protected group; (2) [he] was qualified for [his] position;
(3) [he] suffered an adverse employment action; and (4) employment or
disciplinary policies were differently applied to [him].” Chapter 7 Tr. v. Gate
Gourmet, Inc., 683 F.3d 1249, 1255 (11th Cir. 2012). Similarly, he makes a prima
facie case of retaliation under Title VII by showing that: “(1) [he] engaged in an
15

activity protected under Title VII; (2) [he] suffered an adverse employment action;
and (3) there was a causal connection between the protected activity and the
adverse employment action.” Crawford, 529 F.3d at 970.13 “[S]ummary judgment
. . . is appropriate if [the plaintiff] fails to satisfy any one of the elements of a prima
facie case.” Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1433 (11th Cir.
1998).
But if the plaintiff makes his prima facie case of either discrimination or
retaliation, “the burden shifts to the defendant to articulate a legitimate
nondiscriminatory reason for its actions.” Gate Gourmet, 683 F.3d at 1255. And
if the defendant proffers a nondiscriminatory reason, the burden returns to the
plaintiff, who must show that the proffered reason is pretextual. Id. The plaintiff
can

demonstrate

pretext

by

exposing

“weaknesses,

implausibilities,

inconsistencies, incoherencies, or contradictions” in the defendant’s reasoning.
Springer v. Convergys Customer Mgmt. Grp. Inc., 509 F.3d 1344, 1348 (11th Cir.
2007).
A.

Exhaustion of Administrative Remedies
Title VII provides that an aggrieved employee must file a charge with the

EEOC before pursuing a judicial complaint. See 42 U.S.C. § 2000e-5(e). The
13

Although Title VII discrimination claims can be supported by evidence that an
employer has both lawful and discriminatory motives, “Title VII retaliation claims require proof
that the employer’s desire to retaliate was the but-for cause” of the plaintiff’s challenged
employment action. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013).
16

charge should contain certain information including, “[a] clear and concise
statement of the facts . . . constituting the alleged unlawful employment practices.”
29 C.F.R. § 1601.12. “The scope of the employee’s judicial complaint “is limited
by the scope of the EEOC investigation which can reasonably be expected to grow
out of the charge of discrimination.” Mulhall v. Advance Sec., Inc., 19 F.3d 586,
589 n.8 (11th Cir. 1994) (citing Sanchez v. Standard Brands, Inc., 431 F.2d 455,
466 (5th Cir. 1970) (internal quotation marks omitted)).
Defendants contend that summary judgment should be granted in their favor
on Mr. Adams’s Title VII discrimination claims because Mr. Adams failed to
report to the EEOC in his second and third charges of discrimination facts
substantiating his allegations of race discrimination. (Doc. # 34, at 8–9) (“[W]hile
[Mr. Adams] has checked both race and retaliation on the October 2011 [c]harge
. . . , the narratives of both [EEOC] charges only allege retaliation. Moreover,
neither charging instrument references a heavy equipment operator position.”).)
Mr. Adams responds that his first EEOC charge described allegations of
racial discrimination, and his second EEOC charge referenced his first charge;
ergo, he could reasonably expect the EEOC to investigate continued discrimination
in addition to new allegations of retaliation.

Furthermore, his third charge

identifies “race” as a “cause of discrimination.” (Doc. # 35-5 at 1.)

17

It is true that the second and third charges do not clearly allege racially
motivated discrimination where the EEOC charge form requests a narrative of “the
particulars.” (Docs. # 35-3, at 1; 35-5, at 1.) Rather, each charge focuses on the
City’s alleged retaliation for Mr. Adams’s past complaints of race discrimination.
However, courts should be “extremely reluctant to allow procedural technicalities
to bar claims brought under Title VII,” and therefore, they should interpret the
scope of an EEOC charge liberally. Gregory v. Ga. Dep’t of Human Res., 355
F.3d 1277, 1280 (11th Cir. 2004) (internal quotations omitted). Because it is
appropriate to interpret the scope of Mr. Adams’s EEOC filings liberally, and
because the EEOC was already aware of potentially discriminatory actions after its
investigation of Mr. Adams’s first charge, the court finds the EEOC’s investigation
of Mr. Adams’s second and third charges could reasonably include an inquiry of
whether the City or its employees discriminated against Mr. Adams on the basis of
his race. Hence, the court will consider the merits of Mr. Adams’s Title VII
discrimination claims. Even if Mr. Adams’s Title VII discrimination claims were
procedurally barred, the same analysis is necessary for his § 1981 discrimination
claims against the Individual Defendants.14

14

Mr. Adams does not support his § 1981 and § 1983 claims against the City with any
argument that the City had a custom or policy of discrimination or retaliation.
18

B.

Discrimination Claims Under Title VII and § 1981
Mr. Adams has not responded to each argument raised in Defendants’

motions for summary judgment. Even so, each argument will be addressed.
1.

Non-Promotion to Construction Equipment Operator in May 2008

Defendants contend that the City could not, and therefore, did not, promote
Mr. Adams to Construction Equipment Operator in May 2008 because he did not
meet the minimum qualifications for the job. See Wu v. Thomas, 847 F.2d 1480,
1483 (11th Cir. 1988) (requiring that a plaintiff be qualified for the promotion he
seeks).

Mr. Adams does not respond to Defendants’ argument.

Summary

judgment is due to be granted as to this claim.
2.

Non-Promotion to Labor Foreman I Positions in 2008, 2009, and
2010

Defendants argue that Mr. Adams cannot show that his non-promotion to
Labor Foreman I at any time was racially discriminatory because “[a]ll persons
hired” to that position “since [Mr. Adams] began his employment with the City . . .
have been African American male[s].” (Doc. # 34 at 11; Doc. # 70, at 4.) Mr.
Adams does not respond to these arguments. In the absence of other circumstantial
evidence, an employer’s determination to hire or promote a candidate from the
same protected class as the plaintiff prevents the plaintiff from making a prima
facie case of race discrimination. Crawford, 529 F.3d at 970 (requiring that the
19

plaintiff show that “[his] employer treated similarly situated employees outside
[his] class more favorably”). Defendants are entitled to summary judgment on Mr.
Adams’s race discrimination claims based on his non-promotion to Labor
Foreman I in 2008, 2009, and 2010.
3.

Denial of Lateral Transfer in September 2011

Defendants assert that Ms. Gipson’s refusal to transfer Mr. Adams to either
of two different Equipment Operator positions in September 2011 is not actionable
because the denial of a lateral transfer to a position with identical hours, pay, and
benefits is not an adverse employment action. Mr. Adams responds that while it is
true that the requested Equipment Operator jobs would not have involved better
hours, pay, or benefits, he would have been able to drive a tandem truck and to
operate other heavy equipment that was not available to him in his work on a
concrete crew. He points out that Ms. Gipson admitted that allowing employees to
transfer laterally often affords them with valuable training and experience
operating different equipment, and this diversified experience assists in their career
advancement with the City. (See Doc. # 75-15, at 5.)
Defendants reply that when Ms. Gipson was asked specifically about the
circumstances accompanying Mr. Adams’s requested transfer, rather than about
lateral transfers generally, she stated that Mr. Adams would not have derived any
educational or training benefits because a tandem truck is essentially the same as
20

the dump truck Mr. Adams operates, just larger.

(See Doc. # 75-15 at 9–10

(“[T]here [i]s no difference in driving a small dump truck and a large dump truck,”
so Ms. Gipson decided that the lateral transfer “wasn’t beneficial to [Mr. Adams’s]
career development.”).) Furthermore, Defendants point out that when asked what
the benefits of driving a tandem truck are, Mr. Adams testified, “They got AC,
they got a CD player, and – let me see. It’s bigger. And that’s about it.” (See
Doc. # 76-1, at 5.)
Mr. Adams’s own testimony substantially undercuts the argument in his
brief. Assuming that Mr. Adams sought the lateral transfer not only for airconditioning, a CD player, and a bigger tandem truck, but also opportunities to
learn how to operate new kinds of equipment, there is no dispute that becoming an
Equipment Operator on the asphalt crew would not “entail an increase in pay,
prestige, or responsibility” for Mr. Adams.

Gaddis v. Russell Corp., 242

F. Supp. 2d 1123, 1145 (M.D. Ala. 2003) (Albritton, J.) (internal quotations
omitted). Notably, Mr. Adams points to no evidence, other than Ms. Gipson’s
testimony about why some employees aspire to transfer laterally, demonstrating
that experience driving a tandem truck on an asphalt crew would provide Mr.
Adams with greater prestige or responsibility than his position driving a dump
truck on a concrete crew. Without an adverse employment action, Mr. Adams
cannot make his prima facie case of discrimination. Defendants are entitled to
21

summary judgment on Mr. Adams’s claim of discriminatory non-transfer to an
equipment operator position on an asphalt crew.
4.

Subjection to Drug Testing

Defendants argue that Mr. Adams fails to show how his subjection to drug
and alcohol testing, upon reasonable suspicion and pursuant to City policy,
amounted to an adverse employment action. They further assert that Mr. Adams
fails to show that Defendants have treated white employees more favorably under
similar circumstances. Mr. Adams responds that the testing was unreasonably
administered in violation of City policies and that it constitutes an adverse
employment action.
As discussed supra, to make a prima facie case of race discrimination, the
plaintiff must show that he suffered an adverse employment action.

In the

employment discrimination context, an employer’s conduct that falls short of an
ultimate employment decision “must, in some substantial way, alter the
[plaintiff]’s compensation, terms, conditions, or privileges of employment, deprive
him . . . of employment opportunities, or adversely affect his . . . status as an
employee” in order to be considered adverse. Crawford, 529 F.3d at 970 (internal
quotations and alterations omitted). An employee alleging race discrimination
should also demonstrate that his employer treated similarly situated employees
outside his protected class more favorably. Holifield v. Reno, 115 F.3d 1555, 1562
22

(11th Cir. 1997). Mr. Adams does not show how his subjection to drug testing is
adverse, as Eleventh Circuit law defines adverse employment actions in the context
of a discrimination claim. Neither does he proffer evidence of the City’s failure to
drug test a non-black employee whom the City reasonably suspected of drug use
on the job.15 And even though a plaintiff can survive summary judgment without
producing evidence of a comparator, see Smith v. Lockheed-Martin Corp., 644
F.3d 1321, 1328–29 (11th Cir. 2011), Mr. Adams does not present a “convincing
mosaic of [other] circumstantial evidence that would allow a jury to infer
intentional[, race-based] discrimination,” id. at 1329, motivating Ms. Gipson or
anyone else to subject Mr. Adams to drug testing. For these reasons, Defendants
are entitled to summary judgment on Mr. Adams’s claim that they subjected him to
drug testing on account of his race.
C.

Retaliation Claims Under Title VII and § 1981
1.

Non-Promotion to Construction Equipment Operator in May 2008

Defendants argue that Mr. Adams had not engaged in any protected activity
before May 2008, and thus, he cannot support a prima facie case of retaliation in

15

Outside of the argument section of the opposition brief, Mr. Adams claims that the
Defendants “subject[ed] him to a racially and retaliatory hostile environment by . . . subjecting
him to an unwarranted and humiliating drug test.” (Doc. # 75, at 2.) However, Mr. Adams has
made no effort to fully develop a hostile work environment claim, which requires “proof that the
workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently
severe or pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir.
2002) (internal quotation marks omitted).
23

connection with his non-promotion to Construction Equipment Operator.

Mr.

Adams does not respond to Defendants’ argument. Defendants are entitled to
summary judgment as to this retaliation claim.
2.

Denial of Labor Foreman I Position in May 2008

Similarly, Defendants explain that Jerome Pernell’s upgrade to Labor
Foreman I in May 2008 pre-dates Mr. Adams’s involvement in an EEOC or
judicial complaint. Alternatively, Defendants offer a legitimate non-retaliatory
reason for upgrading Mr. Pernell – his seniority. Mr. Adams does not respond to
either argument.

Defendants are entitled to summary judgment as to this

retaliation claim.
3.

Denial of Labor Foreman I Position in February 2009

Defendants assert that Mr. Adams cannot meet his burden of establishing
causation in his prima facie case of retaliation, as the claim pertains to his nonpromotion to Labor Foreman I in 2009, and because there is no close temporal
proximity between Mr. Adams’s engagement in protected activity and his nonpromotion to Labor Foreman I. The City hired Edward Thomas to the position in
April 2009. Defendants point out that Mr. Adams had last engaged in protected
activity in May and June of 2008.
The Eleventh Circuit has held that a Title VII plaintiff can meet the burden
of proving causation “by showing close temporal proximity between the statutorily
24

protected activity and the adverse employment action.

But mere temporal

proximity, without more, must be very close. A three to four month disparity
between the statutorily protected expression and the adverse employment action is
not enough.” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir.
2007) (internal citations and quotations omitted). Defendants calculate that Mr.
Adams faces a ten- or eleven-month disparity between his engagement in protected
activity and the City’s decision to deny him this promotion.
Alternatively, Defendants argue that the City had a legitimate nondiscriminatory reason for hiring Edward Thomas.

Edward Thomas had

supervisory experience, which Mr. Adams lacked, and Mr. Thomas had more
extensive landscaping experience than Mr. Adams.
Mr. Adams’s opposition brief mentions the denial of a promotion to Labor
Foreman I in February 2009 (Doc. # 75, at 3), but he does not make any substantial
argument about this claim anywhere in his brief.

Defendants are entitled to

summary judgment on Mr. Adams’s retaliation claim as it pertains to Mr. Adams’s
non-promotion to Labor Foreman I in 2009.
4.

Denial of Labor Foreman I Position in February 2010

Similarly, Defendants posit that Mr. Adams cannot meet his burden to show
causation as to his claim that the City denied him a promotion to Labor Foreman I
in February 2010 because Mr. Adams had not engaged in statutorily protected
25

activity since 2008.

Furthermore, Defendants proffer a legitimate, non-

discriminatory reason for placing Gerone Hall in the position Mr. Adams sought.
The City upgraded Mr. Hall from Service Maintenance Worker to Labor Foreman I
pursuant to its policy to promote Service Maintenance Workers one classification
level without action on the part of the Personnel Board to post the position,
establish a competitive register, and qualify applicants.
Again, Mr. Adams does not respond to either of Defendants’ arguments on
this claim. Summary judgment is due to be granted to Defendants on Mr. Adams’s
retaliation claim as it relates to his non-promotion to Labor Foreman I in February
2010.
5.

Denial of Transfer to Equipment Operator Position

Next is the City’s denial of Mr. Adams’s request to transfer to an asphalt
crew. Defendants contend that Mr. Adams cannot show that (1) the denial of a
request to transfer to a comparable job on a different crew would have dissuaded a
reasonable employee from making or supporting a charge of discrimination, see
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006), or (2) that the
City’s September 2011 denial of his requested transfer was within sufficiently
close temporal proximity to his April 2010 EEOC charge, see Thomas, 506 F.3d
at 1364. Alternatively, Defendants argue that Ms. Gipson had a legitimate nonretaliatory reason for not transferring Mr. Adams: he would derive no benefit (i.e.,
26

increased salary, better hours, etc.) from the transfer, and the transfer would also
place Mr. Adams under the supervision of Mr. Ivey, whom Mr. Adams had
accused of discrimination in the past.
Mr. Adams counters that he need not make a prima facie case of retaliation
because Ms. Gipson has admitted that “she refused to transfer [him] to the
Equipment Operator Positions on the asphalt crew because [of] the complaints of
discrimination which [he] had lodged against James Ivey.” (Doc. # 75, at 20.) Mr.
Adams misses – maybe ignores – Ms. Gipson’s point and the evidence. In both her
affidavit and deposition she explained that she did not transfer Mr. Adams because
(1) he would have derived no benefit from the transfer in his pay, hours, benefits,
or job duties, and (2) if transferred, Mr. Adams would be working for Mr. Ivey, a
supervisor whom Mr. Adams had accused of race discrimination. (See Docs. # 7516, at 2 (“[Mr. Adams] would be working for James Ivey who, in 2008, Mr.
Adams alleged discriminated against him.”); 75-15, at 13 (“I mean, why would you
want to work under someone that you said that you thought had discriminated
against [you]?”); 75-15 at 13 (“I just didn’t think [Mr. Adams] would be happy
working with Mr. Ivey because he felt that he had been discriminated against. I
just didn’t want to put him over there, and he wasn’t getting any benefits from
it.”).)

27

While the court must view the evidence in the light most favorable to Mr.
Adams, it cannot view Ms. Gipson’s remarks as an admission of bias or retaliatory
intent without misconstruing what she said. She offered legitimate explanations
for her decision to deny the transfer, including her intent to keep Mr. Adams and
Mr. Ivey from potentially experiencing conflict. She does not admit to punishing
Mr. Adams for complaining about Mr. Ivey in the past.
In the absence of Defendants’ expressed intent to retaliate, Mr. Adams must
put forward a prima facie case. Mr. Adams does not explain how the denial of his
requested lateral transfer would dissuade a reasonable employee from engaging in
protected activity. See Burlington, 548 U.S. at 57, 68. Regarding causation, he
contends that “an adverse action which follows . . . an extended period of
opposition . . . can be retaliatory.” (Doc. # 75 at 21 (citing cases from the Third
Circuit including San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir. 1994)).)16 He
contends that “this was the first opportunity which [Ms.] Gipson had to affect [his]
working conditions, and she used it to deny him the benefit he sought.” (Doc.
# 75, at 22.) However, in the absence of other evidence of causation, Eleventh
Circuit law requires a showing of close temporal proximity between a plaintiff’s

16

In San Fillipo, the court reasoned that “[a]lthough [an adverse action] that occurs years
after protected activity might not ordinarily support an inference of retaliation, where . . . a
plaintiff engages in subsequent protected activity and the plaintiff [suffers adverse action] after
the final episode of such protected activity, a fact-finder may reasonably infer that it was the
aggregate of the protected activities that led to retaliatory dismissal.” 30 F.3d at 444.
28

engagement in protected activity and an adverse employment action. Mr. Adams
does not meet that standard.
Assuming for the sake of argument that Mr. Adams could prove a prima
facie case of retaliation, the burden shifts to Defendants to produce a legitimate
non-discriminatory reason for not transferring Mr. Adams to the asphalt crew. As
discussed supra, Ms. Gipson has proffered two reasons. Mr. Adams asserts that
one reason is pretextual and “simply not believable.” (Doc. # 75, at 26 (asserting
that Ms. Gipson testified that lateral transfers can be beneficial to employees in
contradiction to her testimony that Mr. Adams’s requested lateral transfer would
not have been beneficial to him).) It is Mr. Adams’s burden to address each of Ms.
Gipson’s proffered non-retaliatory reasons “head on and rebut [them].” Crawford
v. City of Fairburn, Ga., 482 F.3d 1305, 1308 (11th Cir. 2007) (“If the employer
proffers more than one legitimate, nondiscriminatory reason, the plaintiff must
rebut each of the reasons to survive a motion for summary judgment.” (emphasis
added)). Mr. Adams fails to show how Ms. Gipson’s proffered non-retaliatory
explanation – that she sought to keep Mr. Adams from working with Mr. Ivey, for
Mr. Adams’s own good – is implausible, inconsistent, or incredible.
Thus, Mr. Adams fails to make a prima facie case of retaliation as to his
non-transfer to an asphalt crew equipment operator position. Assuming that he
could make the prima facie case, he fails to rebut as pretext each of Defendants’
29

legitimate non-discriminatory reasons for not transferring him.

Consequently,

Defendants are entitled to summary judgment on this claim of retaliation.
6.

Subjection to Drug Testing

Finally, Defendants argue that they are entitled to summary judgment on Mr.
Adams’s retaliation claim as it relates to his subjection to drug and alcohol testing.
To make a prima facie case of retaliation Mr. Adams needs to show that (1) he
engaged in statutorily protected activity; (2) he suffered an adverse employment
action; and (3) the adverse action was causally connected to his protected activity.
Crawford, 529 F.3d at 970. Defendants do not dispute that Mr. Adams’s most
temporally proximate protected activity (initiating contact with the EEOC to
request the issuance of a notice of right to sue letter) constitutes engagement in
protected expression. (See Doc. #76, at 9.) Instead, Defendants contend that drug
testing Mr. Adams pursuant to official policy and based on reasonable suspicion is
not an adverse employment action. And further, they assert that, like Mr. Adams’s
other retaliation allegations, there is no proof of close temporal proximity to his
engagement in protected activity. According to Defendants, they were unaware on
October 3, 2011, that Mr. Adams had requested a notice of right to sue letter. To
their knowledge, his most recent engagement in protected activity was about
eighteen months earlier in 2010.

30

a.

Adverse Action

The Supreme Court has explained in Burlington that Title VII’s
“antiretaliation provision protects an individual not from all retaliation, but from
retaliation that produces an injury or harm.”

548 U.S. at 67.

“Adverse

employment actions” are interpreted more broadly in the retaliation context than in
the discrimination context. Id. at 61–63. Mr. Adams “must show that a reasonable
employee would have found [his being subjected to drug testing] materially
adverse, which in this context means it well might have dissuaded [him] from
making or supporting a charge of discrimination.” Id. at 68 (internal quotations
omitted). Although the “reasonable person” standard is meant to be objective, the
Supreme Court advised that “the significance of any given act of retaliation will
often depend upon the particular circumstances. Context matters. The real social
impact of workplace behavior often depends on a constellation of surrounding
circumstances, expectations, and relationships.” Id. at 69 (emphasis added). The
Eleventh Circuit has commented that “Burlington . . . strongly suggests that it is for
a jury to decide whether anything more than the most petty and trivial actions
against an employee should be considered materially adverse to him and thus
constitute adverse employment actions.” Crawford, 529 F.3d at 973 n.13 (internal
quotations omitted).

31

Although submitting to drug and alcohol screening is, for some employees, a
non-offensive and expected part of a job, being singled out and accused of using
drugs or alcohol on the job is not a typical, petty, or trivial workplace experience.
A reasonable employee would take offense at being suspected of drug use if he is
innocent, and more significantly, he might feel anxiety about the employer’s action
when there was little or no reason to suspect drug use. He would likely worry that
his employer was looking for an excuse to terminate his employment or otherwise
discipline him. Additionally, considering the context of Mr. Adams’s situation
(i.e., Mr. Adams’s history of administrative and judicial complaints of
discrimination and retaliation against the City), which Burlington advises is
important, see 548 U.S. at 69, there is a genuine issue of material fact as to whether
a reasonable employee in Mr. Adams’s shoes would be dissuaded from making or
supporting a charge against his employer if the employer subjected him to drug and
alcohol testing without a good reason.
Of course, in this instance, Mr. Adams was not dissuaded. He filed his third
EEOC charge nine days after his subjection to testing. But that does not mean that
a reasonable employee would not have been dissuaded from reporting his
employer’s unlawful conduct. It is not for the court at summary judgment to
conclude that Mr. Adams’s subjection to drug and alcohol testing was “materially

32

adverse to him.” Crawford, 529 F.3d at 973 n.13.17 Mr. Adams satisfies the
adverse employment action element of his prima face case of retaliatory drug
testing.
b.

Causation

The Eleventh Circuit “has interpreted the causal link requirement broadly; a
plaintiff merely has to prove that [his] protected activity and the [adverse]
employment action are not completely unrelated.” EEOC v. Reichhold Chems.,
Inc., 988 F.2d 1564, 1571–72 (11th Cir. 1993). Yet, “[a]t a minimum, a plaintiff
must generally establish” through direct or circumstantial evidence “that the
employer was actually aware of the protected expression at the time it took adverse
employment action.” Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1354 (11th
Cir. 1999); see also Shannon v. Bellsouth Telecomms., Inc., 292 F.3d 712, 717
(11th Cir. 2002) (requiring that plaintiff show “the decision-makers were aware”
(emphasis

added)); 1

BARBARA T. LINDEMANN

ET

AL.,

EMPLOYMENT

DISCRIMINATION LAW 15-50–15-51 (5th ed. 2012) (“An employee cannot establish
17

Mr. Adams focuses on Bryant v. Johnny Kynard Logging, Inc., ___ F. Supp. 2d ____,
2013 WL 979032 (N.D. Ala. Mar. 8, 2013), in support of his contention that attempts or threats
to frame an employee with a false drug charge is legally sufficient to meet the adverse
employment action requirement in the discrimination context. Bryant is factually distinct.
There, the plaintiff alleged that his employer retaliated against him by terminating his
employment and “trying to frame him with a false drug charge.” Id. at ____, *13. In
determining whether summary judgment was appropriate on the plaintiff’s Title VII and § 1981
retaliation claims, the court found that questions of material fact remained as to whether the
plaintiff’s employer’s allegation that plaintiff was selling drugs and the employer’s directive to
the police to watch plaintiff constituted adverse employment action. Id. at ____, *21. Accusing
an employee of selling drugs and reporting him to law enforcement for the same is much
different than subjecting an employee to drug testing.
33

retaliation without proving that the employer knew that the employee engaged in
protected activity. Without knowledge, there can be no retaliatory intent, and thus
there can be no causal connection.”). Assuming that the plaintiff establishes his
employer’s awareness, a Plaintiff can meet his causation burden by showing close
temporal proximity between his engagement in protected activity and the
employer’s adverse action, “[b]ut mere temporal proximity, without more, must be
very close.” Thomas, 506 F.3d at 1364 (internal quotation marks omitted).
Even though the temporal proximity between his engagement in protected
activity and the drug testing is “very close,”18 Mr. Adams can only speculate that
Ms. Gipson or anyone else in authority at the City knew on October 3 that he
requested a right to sue letter on September 22 or that the EEOC issued a right to
sue letter on September 30. And Defendants have contradicted Mr. Adams’s
theory by putting forward evidence that the City Attorney’s Office first received
the EEOC’s notice at 10:15 a.m. on October 5, 2011. (Doc. # 35-4, at 1 (copy of
City’s original receipt date stamped October 5, 2011.)19 “[T]emporal proximity
alone is insufficient to create a genuine issue of fact as to causal connection where
there is unrebutted evidence that the decision maker did not have knowledge that
the employee engaged in protected conduct.” Brungart v. BellSouth Telecomms.,
18

Mr. Adams requested the issuance of a notice of right to sue letter on September 22,
the EEOC issued the letter on September 30, and Defendants drug tested him on October 3.
19

See supra note 9.
34

Inc., 231 F.3d 791, 799 (11th Cir. 2000). Cf. McCann v. Tillman, 526 F.3d 1370,
1376 (11th Cir. 2008) (reasoning that where a supervisor never refuted plaintiff’s
evidence that the supervisor received a copy of plaintiff’s written grievance,
plaintiff satisfied the causation element by showing a five day gap between the
submission of her grievance and her supervisor’s adverse employment action
against her).
Defendants have thus demonstrated that there is no genuine dispute that they
lacked awareness of Mr. Adams’s September 2011 request for the issuance of a
notice of right to sue letter, and Mr. Adams has not rebutted their evidence.
Because Mr. Adams fails to establish a prima facie case of retaliation, Defendants
are entitled to summary judgment on his claim of retaliatory drug and alcohol
testing in October 2011.20

20

Although Mr. Adams cites Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th
Cir. 2011) generally for its holding that a plaintiff may survive summary judgment without
satisfying the requirements of McDonnell Douglas (see Doc. # 75, at 15–16), Mr. Adams does
not specifically apply Smith in his brief to show how other circumstantial evidence suggests that
Defendants intentionally retaliated against him by subjecting him to drug testing. Mr. Adams
does point out numerous facts that make Defendants’ actions look suspect – for example, that
Mr. Adams was subjected to drug testing on the basis of a nameless citizen’s report, that Ms.
Gipson delayed associating him with the report, that Mr. Orum allegedly blundered the reported
truck’s number when confronting Mr. Adams, and that Defendants failed to document in writing,
per their policy, the reasonableness of their suspicion of Mr. Adams. But these facts do not
support an inference that Defendants knew Mr. Adams had recently participated in statutorily
protected conduct. Without evidence of Defendants’ knowledge, Mr. Adams cannot show that
they had him drug tested “because” he engaged in protected activity. 42 U.S.C. § 2000e-3(a).
35

V. CONCLUSION
At the pretrial conference, the court informed the parties that one claim
would probably go forward, that is, the retaliation claim arising out of drug testing.
In view of the original date stamp on the City’s copy of the right to sue letter, the
court has concluded that no claim survives summary judgment. For the foregoing
reasons, it is ORDERED that Defendants’ Motions for Summary Judgment (Docs.
# 33, 70) are GRANTED. All of Mr. Adams’s Title VII and § 1981 and § 1983
discrimination and retaliation claims against all Defendants are DISMISSED.
A separate final judgment will be issued.
DONE this 27th day of September, 2013.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

36