Roberts v. State of Alabama Department of Youth Services et al

Filing 79

OPINION. Signed by Honorable Judge Myron H. Thompson on 2/11/15. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
ARTHUR ROBERTS, JR.,

)
)
)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
STATE OF ALABAMA
DEPARTMENT OF YOUTH
SERVICES and GEORGE
McCREE, in his individual
capacity,
Defendants.

CIVIL ACTION NO.
2:13cv335-MHT
(WO)

OPINION
Plaintiff Arthur Roberts, Jr. brings this lawsuit
against his former employer, defendant State of Alabama
Department

of

Youth

Services

(DYS),

supervisor, defendant George McCree.

and

his

DYS

Roberts charges

DYS with religious discrimination and retaliation in
employment,

in

violation

of

Title

VII

of

the

Civil

Rights Act of 1964, as amended, 42 U.S.C. §§ 1981a &
2000e through 2000e-17.
individual

capacity,

Fourteenth

Amendment’s

He also sues McCree in his

charging
Equal

a

violation

Protection

of

Clause,

the
as

enforced

through

jurisdiction

over

42

U.S.C.

§

Roberts’s

1983.

claims

The
under

court
28

has

U.S.C.

§§ 1331 (federal question) and 1343 (civil rights), and
42 U.S.C. § 2000e-5(f)(3) (Title VII).
This cause is before the court on DYS and McCree’s
motion for summary judgment.

Summary judgment will be

granted in part and denied in part for DYS.

Summary

judgment will be granted in full for McCree.

I.

SUMMARY-JUDGMENT STANDARD

“A party may move for summary judgment, identifying
each claim or defense--or the part of each claim or
defense--on

which

summary

judgment

is

sought.

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).

The court must view

the admissible evidence in the light most favorable to
the non-moving party and draw all reasonable inferences

2

in favor of that party.

Matsushita Elec. Indus. Co.

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

II. BACKGROUND
Roberts,
pastoral

an

ordained

services

while

minister,
a

DYS

volunteered

employee.

his

Roberts

charges that McCree, the DYS Campus Chief of Security
at

Mt.

Meigs

correctional

facility,

discriminated

against him because of his religious practices and then
retaliated against him after he filed an administrative
charge with the Equal Employment Opportunity Commission
(EEOC) on the basis of this discrimination.

The facts

that follow are drawn from the evidence taken in the
light most favorable to Roberts.
Roberts was hired by DYS as a probationary-status
Youth Services Security Officer in the fall of 2011.
He was assigned to the Mt. Meigs juvenile correctional
facility.

In accordance with departmental policy, all

employees

must

first

period

six

months,

of

serve
after
3

an

initial

which

probationary

probation

may

be

extended

at

departmental

discretion

before

a

final

decision is made regarding permanent employment status.
Roberts had some minor competence and disciplinary
issues during his first few months on the job.
example,

he

failed

his

first

“control

For

tactics”

training, though he re-tested and passed on his second
try; at one point, he was reprimanded for using his
personal

cell

phone

on

campus;

and

he

received

one

formal “counseling” letter for failing to submit an
incident

report.

However,

he

formal disciplinary sanctions.

did

not

receive

any

Near the end of the six

months, he received a “meets standards” probationary
performance appraisal score of 24 out of 40.

His work

habits, including attendance, punctuality, cooperation,
and

compliance

with

rules,

were

all

considered

“satisfactory.”
Within

his

first

few

months

at

DYS,

Roberts

notified his supervisor and other administrators that
he

was

an

ordained

minister

and

that

he

wished

to

provide volunteer pastoral services to the facility’s
4

young men.

After speaking with the campus chaplain and

after a conference call with McCree and one of the
facility

directors,

Roberts

was

authorized

administer pastoral services in his off-hours.

to

He was

scheduled to begin providing services once a month, on
Sunday.
McCree expressed displeasure at Roberts’s interest
in

the

ministry,

and

religious activity.

he

ridiculed

him

about

his

McCree would tease Roberts with

comments such as, “preaching the word today, Minister?”
and “You going to get some saved today, ain’t you,
Preacher?”

Roberts

Test.

(doc.

no.

37-2),

Roberts took these comments to be derogatory.
also

told

Roberts

not

to

“come

out

here

at

8-9.

McCree

with

that

preaching shit to these kids” because “they don’t want
to hear it,” and McCree stated to another employee,
“How in the world is that man [Roberts] going to come
out here and preach, when he can’t perform his job he

5

was

hired

to

do[?]”.

EEOC

Statement

from

according

Frankie

to

Knight (doc. no. 40-1) at 12.1
Throughout
McCree

also

this

period,

subjected

harassment.

For

him

example,

to

general

after

Roberts,

ridicule

Roberts

got

and
two

department vehicles stuck in the mud, McCree assigned
him a vehicle with no working air conditioner.

On

another occasion, McCree gave him a hard time about his
shoes, after Roberts had received a compliment from a
co-worker that his shoes shined.
On

April

10,

2012,

Roberts

called

in

sick

reported his absence to the gate administrator.

and

McCree

chastised Roberts for not also calling a supervisor, as
was

proper

procedure,

and

requested

that

Roberts’s

leave be taken without pay.
A few days later, McCree recommended that Roberts’s
probation

be

extended

for

three

months.

McCree

1. DYS and McCree have moved to strike the evidence
produced
by
Roberts
regarding
these
statements
recounted by Frankie Knight in his interview with the
EEOC.
In a separate order issued on this same date,
the court denies this motion.
6

reported that, before a final recommendation could be
made

regarding

Roberts’s

employment

status,

Roberts

needed additional time to improve “time and attendance,
use of security equipment and vehicles, and reporting
writing.”

Probationary Extension Request (doc. no. 37-

2) at 21.

The extension request was approved.

On May 23, 2013, Roberts filed in administrative
charge with the EEOC, alleging that McCree had bullied,
intimidated,
religion.
EEOC

and

harassed

him

Sometime shortly

charge,

McCree

told

on

the

basis

of

his

after Roberts filed his
Frankie

Knight,

another

employee, that he had heard that Roberts had filed an
EEOC charge against him and that, if it was true, he
(McCree)

“was

going

to

fire

his

ass.”

July

11

Evidentiary Hearing Tr. (doc. no. 58) at 33:17-23.
On June 20, 2012, McCree submitted a recommendation
to

terminate

Roberts’s

employment,

stating:

“Roberts

failed to demonstrate that he can work in his role as a
[Security

Police

instructed

on

Officer]
a

comfortably

routine
7

basis

as

without
to

being

what

he

procedurally should do to maintain compliance with the
existing role and responsibilities of a Security Police
Officer

and

Termination

the
(doc.

agency.”
no.

Request

37-2)

at

for

23.

Probationary

The

next

day,

McCree spoke to Roberts in his office, explaining that
Roberts could choose to resign or be terminated.
Roberts resigned June 22, 2012, explaining, in his
letter

of

resignation,

that

conditions

at

work

had

become unbearable for him “before, during, and after”
McCree learned of the EEOC complaint and that McCree’s
“personal vendetta” left him no choice but to resign.
Letter of Resignation (doc. no. 41-3), at 11.
Roberts then brought this lawsuit against DYS and
McCree.

III. DISCUSSION
A. Title VII
Title

VII

bars

an

employer

from

discriminating

against an employee “with respect to his compensation,
terms, conditions, or privileges of employment, because
8

of such individual’s race, color, religion, sex, or
national origin[.]” 42 U.S.C. § 2000e-2(a)(1).
VII

also

prohibits

retaliation

against

an

Title

employee

because he opposed an “unlawful employment practice.”
42

U.S.C.

§

2000e-3(a).

Roberts

charges

DYS

with

religious discrimination and retaliation, in violation
of

Title

VII.

DYS

seeks

summary

judgment

on

both

is

that

claims.

1. Religious-Discrimination Claim
Roberts’s

religious-discrimination

claim

DYS subjected him to a hostile-work environment due to
his religious practices.

“A hostile work environment

claim under Title VII is established upon proof that
the

workplace

intimidation,
sufficiently

is

permeated

ridicule,
severe

or

and

with

discriminatory

insult,

pervasive

to

that

is

alter

the

conditions of the victim’s employment and create an
abusive working environment.”
Dothan,

Inc.,

277

F.3d

1269,
9

Miller v. Kenworth of
1275

(11th

Cir.

2002)

(internal

citations

religion-based
show:

(1)

harassment;
based

on

harassment

omitted).

hostile-work

that

he

(2)

that

has

To

environment,

been

subject

prove

a

Roberts must
to

unwelcome

the

harassment

must

have

been

his

religious

practices;

(3)

that

the

was

sufficiently

severe

or

pervasive

to

alter the terms and conditions of employment and create
a discriminatorily abusive working environment; and (4)
that the employer is responsible for such environment
under

either

liability.

a

theory

of

vicarious

or

of

direct

Cf. id. (setting forth these factors for a

race-based claim); MackMuhammad v. Cagle’s Inc., 379 F.
App’x 801, 805 (11th Cir. 2010) (adapting Miller to a
religion claim).
failed

to

harassment

DYS primarily argues that Roberts has

establish
was

the

third

sufficiently

element:

severe

or

that

pervasive

the
to

alter the terms and conditions of his employment or
create a discriminatorily abusive working environment.
The court agrees.

10

Whether harassing conduct is sufficiently severe or
pervasive

to

employment

alter

is

subjectively.

the

terms

evaluated
Miller,

277

or

both

conditions

objectively

F.3d

at

1276;

see

of
and
also

Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22
(1993).

“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.”

Miller, 277 F.3d at 1276 (internal citations omitted).
In evaluating the objective severity of harassment, the
court must consider the totality of the circumstances,
including

factors

such

as:

“the

frequency

of

the

conduct”; “the severity of the conduct”; “whether the
conduct is physically threatening or humiliating, or a
mere

offensive

utterance”;

unreasonably

interferes

performance.”

and

“whether

McCree’s

the

alleged

totality

disdain
11

the

conduct

Id.

Considering

with

the

of

for

the

employee’s

job

circumstances,

Roberts’s

religious

practices did not create an objectively abusive-work
environment.

McCree made several offhand, disparaging

comments to Roberts about his ministering activities,
and he expressed disapproval over Roberts’s volunteer
pastoring with the young men at the facility.
Roberts’s

evidence

of

ridicule

does

not

However,
amount

conduct beyond “mere offensive utterance[s].”
277 F.3d at 1276.
Roberts’s

Miller,

McCree did not attempt to impede

religious

Roberts in any way.

to

practice,

nor

did

he

threaten

Nor does Roberts mention more than

a handful of comments made over several months.

Cf.

id. (contrasting “occasional off-color comments” with
derogatory

racial

slurs

“[used]

in

an

intimidating

manner,” and finding the latter actionable); McCann v.
Tillman, 526 F.3d 1370, 1379 (“sporadic and isolated”
offensive

and

sufficient

to

derogatory
establish

race-based
that

employer

comments

not

conduct

was

objectively severe and pervasive).
While Roberts

alleges that

he was

made

to feel

humiliated, much of McCree’s personal animus seems to
12

be entirely unrelated to religion.

And he offers no

evidence

more

to

interpret

the

degrading

incidents--such as assignment to a vehicle without air
conditioning or ridicule about one’s shoes--as related
to his religion.
that

the

Nor does Roberts present evidence

harassment

performance.

interfered

with

his

job

To the contrary, Roberts testified that,

while he felt “picked on,” he did not “let it deter me
from doing the job that I was hired to do.”

Roberts

Test. (doc. no. 37-2), at 5.
While McCree’s conduct was certainly disrespectful,
it does not meet the standard for objective severity to
be actionable under Title VII.

Title VII is not a

“general civility code” and does not protect against
“the ordinary tribulations of the workplace, such as
the

sporadic

related

jokes,

use

of

and

abusive

language,

occasional

teasing,”

[religion]Faragher

v.

City of Boca Raton, 524 U.S. 775, 788 (1998) (internal
citations
Therefore,

omitted),
Roberts’s

as

McCree

in

here.

hostile-work-environment

claim

13

engaged

fails, and the court need not proceed to examine the
subjective component or the remaining elements of the
claim.

2. Retaliation Claim
Title VII prohibits not only discrimination, but
retaliation. An employer cannot retaliate 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

hearing thereunder.

investigation,

proceeding,

or

Crawford v. Carroll, 529 F.3d 961,

970 (11th Cir. 2008).
In this case, Roberts filed an EEOC charge against
McCree based on religious discrimination.

According to

Roberts, after McCree learned about the EEOC charge
against

him,

he

retaliated

in

two

ways:

first,

he

recommended that Roberts be terminated; and, second, he

14

forced Roberts to resign.2

The court will address each

in turn.
To make out a prima-facie case of retaliation, a
plaintiff must show: (1) that he engaged in an activity
protected under Title VII; (2) he suffered a materially
adverse action; and (3) there was a causal connection
between the protected activity and the adverse action.
Kidd v. Mando Am. Corp., 731 F.3d 1196, 1211 (11th Cir.
2013).

For the purposes of a retaliation claim, an

action is materially adverse if it “well might have
dissuaded a reasonable worker from making or supporting
a charge of discrimination.”

Burlington N. & Santa Fe

2. Around the same time that Roberts filed his EEOC
charge, McCree switched Roberts from his second shift
to the third, overnight shift.
Roberts argues that
McCree switched him to the third shift in retaliation
for
the
EEOC
charge.
However,
internal
DYS
correspondence suggests that the change already had
been set on the day before Roberts filed his EEOC
charge.
See DYS Memorandum (doc. no. 50-11), at 9
(dated May 22, 2012). Because Roberts has not offered
any admissible evidence to the contrary, Roberts’s
argument fails on this point.

15

Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal
citations omitted).
There is no question that, by filing a Title VII
administrative charge, Roberts engaged in a protected
activity.

There

is

also

no

question

that

both

retaliatory acts alleged by Roberts--the recommendation
to

be

terminated,

and

being

given

an

ultimatum

to

resign or be fired--meet the standard for “materially
adverse actions” set forth by Burlington.

The court

will therefore turn to whether Roberts can demonstrate
the required causal connection for each adverse action.
The

Supreme

Court

has

recently

established

the

evidentiary burden required for a plaintiff to prove
causation in retaliation cases.

In University of Texas

Southwestern Medical Center v. Nassar, 570 U.S. ---,
133

S.Ct.

2517

(2013),

the

Supreme

Court

adopted

a

traditional causation standard: plaintiffs must prove
that the retaliatory motive was the ‘but-for’ cause of
the adverse employment action.
VII

retaliation

claims

must
16

See id. at 2533 (“Title
be

proved

according

to

traditional principles of but-for causation, not the
lessened causation test stated in [42 U.S.C.] § 2000e–
2(m),” the substantive antidiscrimination provision).
Roberts’s co-worker, Frankie Knight, testified that
McCree told Knight that he had heard that Roberts had
filed an EEOC charge against him and that, if it was
true,

he

“was

going

to

fire

his

ass.”

July

11

Evidentiary Hearing Tr. (doc. no. 58), at 33:17-23.
While McCree did not himself have the power to fire
Roberts, it is uncontested that McCree’s recommendation
regarding Roberts’s employment status would have some
influence

on

the

ultimate

decisionmaker.

July

11

Evidentiary Hearing Tr. (doc. no. 58), at 41:11-43:20.
It

is

also

Roberts

uncontested

filed

his

EEOC

that

within

charge,

a

McCree

month
did

after
indeed

recommend Roberts’s termination.
DYS

argues

terminate

Roberts

disciplinary
retaliation

that

and
for

was

McCree’s
in

competence
filing

an
17

recommendation

fact

caused

issues,
EEOC

rather

charge.

by
than

to
his
as

However,

Knight’s

testimony

[Roberts’s]

ass”

that

if

McCree

he

had

intended

filed

an

to

EEOC

“fire
charge

certainly presents a genuine issue of material fact
regarding

the

but-for

recommendation.

cause

of

McCree’s

unfavorable

Contrary to DYS’s argument, the but-

for cause of a challenged employer action need not be
the sole cause of the action.
To

demonstrate

activity

was

plaintiff

the

must

that

a

but-for
present

plaintiff’s

cause
“proof

of

protected

retaliation,

that

the

the

unlawful

retaliation would not have occurred in the absence of
the

alleged

employer.”

wrongful

action

or

actions

Nassar, 133 S.Ct. at 1533.

of

the

Yet McCree’s

retaliatory intent may still constitute a but-for cause
even if it “combines with other factors to produce the
result, so long as the other factors alone would not
have done so--if, so to speak, it was the straw that
broke

the

camel’s

back.

Thus,

if

poison

is

administered to a man debilitated by multiple diseases,
it

is

a

but-for

cause

of
18

his

death

even

if

those

diseases

played

a

part

in

his

demise,

so

long

as,

without the incremental effect of the poison, he would
have lived.”

Burrage v. United States, 571 U.S. ---,

134 S.Ct. 881, 888 (2014) (explaining but-for causation
and citing Nassar).
It

may

be

true

that

other

factors

concerning

Roberts’s competence combined with McCree’s retaliatory
animus when he made the recommendation to fire Roberts.
However, Roberts has presented sufficient evidence of
retaliation

to

survive

summary

judgment,

because

Knight’s testimony creates a genuine issue of material
fact as to whether the EEOC charge was “the straw that
broke the camel’s back.”
The

court

retaliation

next

claim.

recommendation

that

Id.

turns

to

One

day

Roberts

the

forced-resignation

after
be

submitting

terminated,

his

McCree

called Roberts into his office, notified him of the
negative recommendation, and gave him the choice to
resign or be fired.

Roberts resigned the next day,

citing the fallout from the EEOC charge and the impact
19

of McCree’s “personal vendetta.”

Letter of Resignation

(doc. no. 41-3), at 11.
For

the

same

reasons

discussed

above,

because

McCree counseled Roberts to resign on the basis of his
negative

recommendation

and

because

DYS

has

not

presented any evidence of intervening or superseding
causes

to

which

it

could

attribute

Roberts’s

resignation, Roberts has also presented a genuine issue
of material fact as to whether his EEOC charge was the
but-for cause of his forced resignation.3

3. In his complaint, Roberts argues that his forced
resignation amounted to a constructive discharge.
“Under
the
constructive
discharge
doctrine,
an
employee’s reasonable decision to resign because of
unendurable working conditions is assimilated to a
formal discharge for remedial purposes. The inquiry is
objective: Did working conditions become so intolerable
that a reasonable person in the employee’s position
would have felt compelled to resign?” Pa. State Police
v. Suders, 542 U.S. 129, 141 (2004).
Construing the evidence in the light most favorable
to Roberts, the court agree that it is plausible that
McCree’s recommendation to terminate Roberts and his
subsequent ultimatum--to resign or be fired--would have
compelled a reasonable employee to resign before such
termination became part of his permanent record.
(continued...)
20

DYS’s

motion

for

summary

judgment

on

the

retaliation claim is therefore denied.

B. Section 1983

However, as the Eleventh Circuit has explained, it
is “unnecessary” to determine whether Roberts was in
fact constructively discharged for him to prevail on
his
retaliation
claim.
Kurtts
v.
Chiropractic
Strategies Group, Inc., 481 F. App’x 462, 467 (11th
Cir. 2012).
See also Daugherty v. Warehouse Home
Furnishings Distrib., Inc., 951 F. Supp. 2d 1275, 1279
(N.D. Ala. 2013) (Hopkins, J.) (discussing Kurtts).
“To establish a prima facie case of retaliation, a
plaintiff
is
not
required
to
show
an
ultimate
employment decision or substantial employment action.”
Kurtts, 481 F. App’x at 467.
Rather, as already
explained, if McCree’s conduct “well might have
dissuaded a reasonable worker from making or supporting
a charge of discrimination,” Roberts’s retaliation
claim may go forward.
Burlington, 548 U.S. at 68
(internal citations omitted).
Here, McCree's option
to Roberts to resign or be fired would, by itself,
constitute a materially adverse-employment action.
Therefore, Roberts’ failure to establish that he was
constructively
discharged
would
not
diminish
his
retaliation claim, for there is still evidence to
support that, in retaliation for his having filed an
EEOC charge, he suffered the materially adverseemployment action of being given the option of either
resigning or being discharged.
21

42 U.S.C. § 1983 allows an individual to sue for
money damages when his federally protected rights have
been violated by another individual acting under the
color of state law.

In his original, first, and second

amended complaints, Roberts brought a cause of action
against

McCree

U.S.C.

§ 1983,

in

his

arguing

individual
that

capacity

McCree

under

violated

42
his

constitutional rights under the Equal Protection Clause
of the Fourteenth Amendment.
In his third and final amended complaint, while he
still cited to the constitutional violation and redress
by § 1983 in the first paragraph of the complaint and
while,

when

describing

the

parties,

he

argued

that

McCree is liable under § 1983, Roberts no longer listed
§ 1983 as a separate cause of action, and he removed
his factual discussion of the claim entirely.

In turn,

McCree did not respond to, or even mention, Roberts’s
§ 1983 claim in the motion for summary judgment, nor in
the reply brief, though Roberts continued to argue for
§ 1983 relief in his summary-judgment briefing.
22

The

court

is

omission.

confused

by

what

to

make

of

Roberts’s

Yet even under a liberal pleading standard,

the district court need not “fabricate a claim that a
plaintiff has not spelled out in the complaint.”

5 C.

Wright & A. Miller, Federal Practice & Procedure § 1286
(3d ed. 2004).

Nor may the pleader “weave a net of

refinements and technicalities in which to catch an
unwary opposing litigant.”

Id.

“[U]nder the Federal Rules of Civil Procedure, an
amended complaint supersedes the initial complaint and
becomes the operative pleading in the case.”

Krinsk v.

SunTrust Banks, Inc., 654 F.3d 1194, 1202 (11th Cir.
2011) (internal citations omitted).

Therefore, because

Roberts edited away the § 1983 cause of action from the
final version of his complaint, after he had included
it in three prior versions, and because he provided no
notice to the court or McCree that such omission was
inadvertent,
§ 1983 claim.

Roberts

has

intentionally

dropped

his

Roberts’s attempt to raise the claim

anew on summary judgment must fail.
23

See Gilmour v.

Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir.
2004)

(“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).

A plaintiff may not amend her complaint through

argument in a brief opposing summary judgment.”).
Therefore,

because

Roberts

has

no

pending

claim

against McCree, McCree is entitled to summary judgment
in his favor.

* * *
Accordingly, for the above reasons, the court holds
that DYS is entitled to summary judgment in its favor
on

the

entitled

religious-discrimination
to

retaliation

summary
claim

judgment

and

that

in

claim

but

is

not

its

favor

on

the

McCree

is

entitled

to

summary judgment in his favor in full. An appropriate
judgment will be entered.
DONE, this the 11th day of February, 2015.
_/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE