Parten v. Alabama Department of Tourism, et al.

Filing 64

OPINION. Signed by Honorable Judge Myron H. Thompson on April 20, 2015. (scn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

EDITH M. PARTEN,

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

Plaintiff,
v.
ALABAMA DEPARTMENT OF
TOURISM, a governmental
entity; and LEE SENTELL,
in his official and
individual capacities,
Defendants.

CIVIL ACTION NO.
2:13cv944-MHT
(WO)

OPINION
In this lawsuit, plaintiff Edith M. Parten names as
defendants her former employers, the Alabama Department
of Tourism and its director Lee Sentell, and she claims
that, in violation of federal law, they discriminated
against

her

retaliated

on

the

against

discrimination,

and

basis
her

of

sex

for

suppressed

and

disability,

complaints
her

about

speech.

Parten

relies on Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. §§ 1981a & 2000e through 2000e–17;
the Americans with Disabilities Act (ADA), 42 U.S.C.

§§ 12101-12213; and the First Amendment to the United
States

Constitution,

as

enforced

through

42

U.S.C.

§ 1983.1
The court has jurisdiction over her federal claims
under 28 U.S.C. § 1331 (federal-question), 28 U.S.C.
§ 1343

(constitutional

§ 2000e-5(f)(3)

(Title

claims),

VII),

and

42

42
U.S.C.

U.S.C.
§

12117

(ADA) .
This cause is now before the court on the Tourism
Department and Sentell’s motion for summary judgment.
For the reasons below, the court will grant summary
judgment in favor of the department and Sentell on all
of Parten’s federal claims.

I. SUMMARY–JUDGMENT STANDARD
Summary
shows

that

judgment

is

appropriate

there

no

genuine

is

“if

dispute

the
as

movant
to

any

material fact and the movant is entitled to judgment as
1. Parten also brings a number of state claims,
which will be addressed in a separate and later
opinion.
2

a matter of law.” Fed. R. Civ. P. 56(a).

The court

must view the evidence in the light most favorable to
the non-moving party and draw all reasonable inferences
in favor of that party.

Matsushita Elec. Indus. Co.,

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

II. BACKGROUND
The following are the relevant facts, taken in the
light most favorable to Parten.
In

2008,

Department

of

Sentell,
Tourism,

Information Manager.

as

Director

hired

of

Parten

the
as

Alabama

a

Public

The Tourism Department is charged

with promoting tourism in Alabama.
Parten’s primary responsibilities were to publicize
and garner publicity for Alabama events, attractions,
and

destinations;

to

create

a

flow

of

tourists,

visitors, and travel writers within and to the State;
and to spearhead the department’s efforts to use social
media.
Sentell initially approved of Parten’s performance,

3

giving her highly positive reviews in 2008 and 2009.
However,

beginning

in

the

second

attitude towards Parten worsened.

half

of

2009,

his

Sentell then fired

Parten in 2013.
The crux of this case is whether Sentell’s souring
attitude and eventual termination of Parten were due to
her

actions

or

Sentell

illegal actions.

and

the

Tourism

Department’s

The court will, first, address two

series of events that Sentell maintains justifies the
firing: Parten’s development of a mobile application or
‘app’ (designed to run on smartphones and other mobile
devices)

regarding

Alabama

civil-rights

tourism;

and

Parten’s interaction with a tourism official in Dauphin
Island at a fundraiser and in setting up a subsequent
trip with a travel writer to the island.
will

then

turn

discriminated

to

against

Parten’s
and

claim

terminated

The court

that
based

she

was

on

her

gender and her complaints about such discrimination.
The court does not discuss the facts relevant to her
ADA-disability and First Amendment claims because they

4

are not necessary for the opinion.

A. Two Events
1. The App
In

2010,

Parten

travel-related
civil-rights

decided

mobile

tourism.

app

to

develop

related

Although

the

her

to
app

own

Alabama

was

not

a

project for the Tourism Department, she incorporated
into

the

app

department’s

photographs

server

in

that

its

were

photograph

stored

on

library.

the
She

also incorporated photographs she had taken with the
department’s camera while at work.

She did not request

or receive permission from the department to use the
photos.
taken

by

Some of the department’s photographs had been
employees,

professional
and

had

been

while

others

photographers,
purchased

by

were
the

had

been

copyright

taken

by

protected,

department.

Parten

contends she received permission from the professional
photographers to use those photographs in her app.
When her app was released publicly in March 2011,

5

Parten issued press releases in which she identified
herself as a Tourism Department employee.
The day after her app was released,

and in regard

to its permissibility, Parten requested a meeting and
met with the assistant attorney general who provides
legal advice to state agencies, including the Tourism
Department.

She

told

the

attorney

that

she

had

produced an Alabama Civil Rights Trail app and wanted
to confirm it was not a problem.

The attorney advised

her that it was fine to have a business outside of work
as long as she did it on her own time and did not use
state equipment.

He suggested that she tell Sentell

about the app as a courtesy.
Afterwards, Parten emailed Sentell about the app,
and he asked her to meet with him about it.
meeting,

she

denied

having

used

state

In the

equipment

to

produce the app.

A couple weeks later, Sentell learned

that

app

Parten’s

included

Tourism

photographs and was for sale for $ 2.99.

Department
He instructed

her to take down the app and told her that she had

6

crossed a line by using the Tourism Department’s name
and photographs for commercial purposes.

However, she

did not take the app down, as she felt that it was a
personal

project

and

that

Sentell

did

not

have

the

right to tell her what to do with it.
About five months later, in August of 2011, Sentell
asked

Parten

why

she

had

not

taken

down

the

app.

During this conversation, he asked whether she had used
any

information

from

the

department,

and

she

denied

doing so.
In

September

2012,

Sentell

instructed

Parten

to

provide him with a printed copy of the initial version
of the app.

She told him she did not know if it were

technically possible to do so, as it had been changed
since its initial release, but that she would inquire
with the company that published the app.

After the

meeting, she contacted the publisher of the app and
learned that it would not be possible to provide a copy
of the initial version, as it has not been preserved.
She

did

not

inform

Sentell

7

of

this

conversation

directly
The

but

informed

executive

Sentell’s

assistant

now

executive
denies

assistant.
that

this

conversation took place, and Sentell denies receiving
the information.

Parten did not hear anything more

from Sentell about the app until January 2013 when,
shortly
accusing

before
her

terminating

of

not

her,

he

sent

responding

to

his

her

a

memo

directive

to

print the original version of the app.

2. Interactions with Dauphin
Island Tourism Official
In October 2012, Parten and her husband attended a
charity-fundraising
$

100-per-person

event
entrance

without
fee

for

paying
herself

or

the
her

husband.

Parten had been invited to the event by one

of

sponsors,

the

and

Sentell

had

attendance at the event in advance.

approved

her

Because Parten

also had been invited to and attended the same event a
year earlier with others from her office, also without
paying, she thought nothing of not paying the second

8

time.2

When

she

arrived,

Parten

gave

her

name

to

someone at the entrance, who Parten says looked at a
piece of paper with names on it and told her to enter.
At

the

event,

she

was

introduced

to

Lynne

Brown,

Director of the Dauphin Island Tourism Authority, who
was the main sponsor of the event.3

They had a pleasant

conversation during which Brown told Parten that she
wanted to get her help with various projects.

The same

month, Parten contacted Brown seeking assistance with
arranging

accommodations

and

dining

for

her

and

an

Australian travel writer whom Parten was bringing to
tour Dauphin Island in November 2012.

However, Parten

says that, before finalizing anything with Brown, she
was

offered

and

herself

and

the

another

contact.

accepted
writer

at

free
a

Thereafter,

accommodations

‘fish

camp’

Parten

for

owned

says,

by

Brown

2. Sentell testified that the Tourisn Department
had co-sponsored the event the prior year, which was
why department employees had received free admission.
3. In the record, Brown at times is referred to as
the Director of the South Mobile Tourism Authority. It
is not clear from the record which title is correct.
9

convinced

her

to

stay

at

a

different

property

on

Dauphin Island and arranged for food from a bakery for
Parten and the travel writer.
Brown reportedly was offended by Parten’s behavior
on

both

occasions

and

told

a

very

different

story.

Sentell said that he heard through a mutual friend that
Brown was upset at Parten about these events, so he
contacted Brown.
used

Brown told Sentell that Parten had

Sentell’s

name

and

her

Tourism

Department

affiliation to get into the fundraiser without paying
or being invited and that Parten did not socialize at
the event as a tourism professional but instead as a
regular guest.

Brown also reportedly informed Sentell

that Parten had harassed and pressured her to provide
free accommodations and special meals during the trip
to Dauphin Island with the travel writer.
suggestion,

Brown

sent

a

bill

to

At Sentell’s

Sentell

for

the

tickets to the fundraiser and for room and board during
the

November

trip,

and

outlining her concerns.

wrote

a

letter

to

Sentell

Parten believes that Sentell

10

put

Brown

up

to

writing

the

letter

and

making

the

complaint so he would have a reason to terminate her,
and that the allegations against her were untrue.

B. Parten’s Internal Complaints
of Discrimination
Parten

claims

that,

between

late

2009

and

her

firing in 2013, Sentell treated her differently from
the men in the Tourism Department.

Sentell spoke to

her in a harsh tone and swore at her in anger.
Sentell

routinely

approved

certain

male

While

employees’

travel plans for a year at a time, he singled Parten
out for extra scrutiny, thereby delaying approval of
her

travel

requests.
while

and

denied

two

of

her

travel

He also reviewed her vouchers personally,

he

everyone

requests,

allowed
else’s

his

executive

vouchers,

assistant

including

male

to

process

and

female

employees.
By

March

released,

2011,

Parten

around

started

to

the

time

complain

her
about

app

was

Sentell.

She met with a lawyer at the Alabama State Personnel
11

Board and told her that she felt Sentell was subjecting
her

to

sex

discrimination,

harassment,

and

a

hostile-work environment.

The Personnel Board lawyer

explained

available

filing

various

a

Opportunity

options

complaint

with

Commission

(EEOC).

to

the

her,

Equal
After

such

as

Employment
the

initial

meeting with this lawyer, Parten emailed Sentell and
requested a meeting to discuss his treatment of her.
He ignored the request.
In May 2011, Parten again emailed the Personnel
Board lawyer and said Sentell had denied her travel
request

while

travel freely.

allowing

other

men

in

the

office

to

On August 3, 2011, she again contacted

the lawyer, wishing to discuss workplace harassment.
Around the beginning of 2012, Parten met with the
Personnel Board lawyer again about her concerns, and
the lawyer again laid out various options.
was to contact the Governor’s Office.
Parten

contacted

Communications

to

the

In January 2012,

Governor’s

complain

12

about

One option

Director

Sentell.

of

Parten

complained

about

Sentell’s

harassment

and

bullying.

The Communications Director told the Governor and his
chief

of

Sentell.

staff

that

Parten

had

complained

about

Sentell was notified of the complaint.

At some point, Parten went to Sentell’s executive
assistant,

Cynthia

Flowers,

who

also

serves

as

the

Tourism Department’s Personnel Director, and told her
she would be filing a complaint with the EEOC against
Sentell

for

harassment

and

bullying.

Flowers

asked

Parten to hold off filing with the EEOC and promised to
try

to

After

help

her

learning

Governor’s

work

that

Office,

out
Parten

Flowers

between Parten and Sentell.

her

issues

had
again

with

Sentell.

complained

to

offered

mediate

to

the

Parten says that Flowers

took notes about Parten’s complaints and promised to
write them up and show them to Sentell in an effort to
mediate between them, and that she would put the notes
in Parten’s personnel file.

Flowers later told Parten

that she had shown Parten’s notes to Sentell but he
refused

to

meet

with

Parten.

13

When

Parten

later

received her personnel file, the notes were not there.

C. Parten’s Firing
In
accusing

January
her

2013,

of

not

Sentell

sent

responding

to

Parten
his

print the original version of the app.

a

memo

directive

to

Later that

month, Tourism Personnel Director Flowers delivered a
notice of pre-dismissal conference to Parten and sent
her home on leave.
Department

After the conference, the Tourism

terminated

Parten.

The

termination

letter

explained that the action was based on the following
violations

of

work

rules:

her

“unauthorized

use

of

photographs for profit” in her app, which photographs
were stored on the Tourism Department’s computer; her
use of state time to take photographs for her use in
her app for profit; her failure to respond in a timely
manner to Sentell’s request for a copy of the initial
version of the app; her acceptance of a free ticket to
the fundraising event to allow her husband to attend;
and her demands to the Dauphin Island tourism official

14

to be accommodated and provided meals, and her use of
Sentell’s

name

authority

and

Department.

in

so

created

doing,

which

“liability”

exceeded

for

the

her

Tourism

Evidentiary Submission in Opposition to

Motion for Summary Judgment (Doc. No. 33-19).
On June 28, 2013, Parten filed a charge with the
EEOC.

She now brings this lawsuit.

III. DISCUSSION
Parten makes the following federal claims: that, in
violation

of

Title

treatment,

on

the

VII,

basis

she
of

suffered

gender,

as

disparate
well

as

a

retaliatory discharge; that, in violation of the ADA,
she

was

discriminated

against

on

the

basis

of

disability; and that Sentell violated her right to free
speech under the First Amendment when he told her to
take down her app and not to tweet about tourism from
her personal Twitter account.4

The court will address

4. In their summary-judgment motion, the Tourism
Department and Sentell argue that Parten has not put
(continued ....)
15

each claim in turn.

A. Title VII Disparate-Treatment Claim
Parten brings her Title VII claims against Sentell
in his official and individual capacity.
Tourism

Department

has

been

named

as

Because the
a

Title

VII

defendant as well, Parten's Title VII claims against
Sentell

in

his

official

capacity

are

redundant.

See

Kentucky v. Graham, 473 U.S. 159, 165 (explaining that
official

capacity

suits

“generally

represent

only

another way of pleading an action against an entity of
which

an

officer

is

an

agent”).

Furthermore,

“[i]ndividual capacity suits under Title VII are ...
inappropriate. The relief granted under Title VII is
against the employer, not individual employees whose
actions would constitute a violation of the Act. ...

forward sufficient evidence to establish a Title VII
hostile-work-environment claim. Because Parten has not
responded to this argument, the court assumes Parten
does not intend to make such a claim. Moreover, if she
did intend to advance a hostile-environment claim, she
now has abandoned it.

16

[T]he proper method for a plaintiff to recover under
Title VII is by suing the employer, either by naming
the supervisory employees as agents of the employer or
by

naming

the

employer

directly.”

Busby

v.

City

of

Orlando, 931 F.2d 764, 772 (11th Cir. 1991) (emphasis
in

original).

therefore,

Parten’s

properly

Title

against

VII

only

claims
the

are,

Tourism

Department.
Title

VII

bars

an

employer

from

discriminating

against an employee “because of ... sex.”
§

2000e–2(a)(1).

prima-facie

case

A
of

plaintiff
disparate

can

treatment

42 U.S.C.

establish
by

a

showing

that: (1) she belongs to a protected class; (2) she was
subjected to an adverse-employment action; and (3), in
cases involving alleged bias in the application of work
rules, “either (a) that [s]he did not violate the work
rule, or (b) that [s]he engaged in misconduct similar
to that of a person outside the protected class, and
that the disciplinary measures enforced against [her]
were more severe than those enforced against the other

17

persons who engaged in similar misconduct.” Jones v.
Gerwens, 874 F.2d 1534, 1540 (11th Cir. 1989); see also
Smith

v.

Lockheed–Martin

(11th

Cir.

2011)

Corp.,

(explaining

644

F.3d

various

1321,

ways

1328

that

a

plaintiff may raise a presumption of discrimination).
Once the plaintiff meets its initial burden of alleging
a

prima-facie

case,

the

burden

then

shifts

to

the

defendant to produce a nondiscriminatory reason for the
adverse-employment action.

Id. at 1325-26.

Once the

defendant has done so, the burden shifts back to the
plaintiff

to

show

that

the

proffered

pretext for illegal discrimination.

reason

is

a

Id.

The parties agree that, as a woman, Parten is a
member of a protected class and that she was subjected
to an adverse-employment action in being terminated.5

5. The Tourism Department argues that the only
adverse-employment action Parten can show was her
termination.
Parten did not respond to this argument
and only argued that she suffered disparate treatment
in her termination. Accordingly, the court will treat
Parten’s disparate-treatment claim as based solely on
her termination.

18

The Tourism Department argues that Parten cannot show
that

it

treated

similarly

situated

male

comparators

more favorably than her and that she cannot establish
that

the

given

reasons

for

her

termination

pretext for unlawful discrimination.
When

a

plaintiff

alleges

were

a

The court agrees.

disparate

treatment

in

discipline, to determine whether proposed comparators
are similarly situated courts must evaluate “whether
the employees are involved in or accused of the same or
similar conduct and are disciplined in different ways.”
Burke-Fowler v. Orange Cnty., Fla., 447 F.3d 1319, 1323
(11th Cir. 2006) (quoting Maniccia v. Brown, 171 F. 3d
1364, 1368 (11th Cir. 1999) (citations and quotation
marks

omitted)).6

Parten

puts

forward

three

male

6. The meaning of the phrase ‘similarly situated’
in Title VII has been the subject of conflicting
interpretations in the Eleventh Circuit.
One line of
cases holds that the comparator’s conduct must merely
be similar. See, e.g., Alexander v. Fulton Cnty., Ga.,
207 F.3d 1303, 1333-34 (11th Cir. 2000) (rejecting
nearly identical standard in favor of similar-conduct
standard), overruled on other grounds, Manders v. Lee,
338 F. 3d 1304 (11th Cir. 2003); King v. Piggly Wiggly
Alabama Distribution Co., 929 F. Supp. 2d 1215, 1223
(continued ....)
19

comparators:
Jones.

Grey

However,

Brennan,

Kerry

Teague,

none

these

is

of

an

and

Brian

appropriate

comparator.
As an initial matter, none of these individuals was
accused of a similar combination or number of offenses
as Parten.

This fact alone destroys their usefulness

as comparators.

But even in the particulars of their

offenses, they cannot be considered similarly situated.
Parten

argues

that

Brennan

and

Teague

were

(N.D. Ala. 2013) (Hopkins, J.) (requiring only similar
conduct and rejecting the nearly identical standard as
inconsistent with the intent of Title VII).
Another line of cases holds that, for a comparator
to be considered similarly situated, “the quantity and
quality of the comparator's misconduct [must] be nearly
identical
to
prevent
courts
from
second-guessing
employers' reasonable decisions and confusing apples
with oranges.”
Burke-Fowler, 447 F.3d at 1323
(emphasis
added).
In
Burke-Fowler,
the
court
acknowledged that the Alexander court had required only
similar conduct but reasoned that, under the ‘prior
panel’ rule, it was bound to follow the 1999 ruling in
Maniccia, 171 F.3d at 1368, which adopted the nearly
identical standard in discipline-related cases.
See
Burke-Fowler, 447 F.3d at 1323, n.2.
Under either standard, the result here would be the
same.

20

similarly

situated

in

that

they

both

admitted

to

receiving ‘comped,’ that is, free meals and rooms, and
not

being

terminated

for

it.

But

the

reason

the

Tourism Department put forward for terminating Parten
was not her mere receipt of free accommodations and
food:

It was her alleged inappropriate demands and

pressure to provide free accommodations and food, as
well as her unauthorized use of Sentell’s name in doing
so.
Jones is no better as a comparator.

Parten argues

that Jones is similarly situated because he committed
two

punishable

abusive

or

terminated.7
threatening
Jones’s

use

offenses--insubordination
threatening

and

language--but

use

was

of
not

Parten is not accused of using abusive or
language,
of

such

similarly situated.

so

Sentell’s

language

do

actions
not

regarding

render

him

As for the insubordination charge,

7.
While
standing
by
the
Tourism
Personnel
Director’s desk in the presence of other employees,
Jones told her that he wanted to kill everyone in the
office except her, because she was helping him to get a
raise. Sentell did not view the statement as a threat.
21

Jones’s insubordination occurred in a staff meeting,
when, upon receiving an instruction from Sentell, Jones
told

him

the

instruction

was

“stupid”.

Evidentiary

Submission in Opposition to Summary Judgment, Parten
Deposition

(Doc.

No.

33-1),

at

363-64.

Instead

of

punishing Jones, Sentell reportedly replied that Jones
did not have to do anything he did not want to.
true,

Sentell’s

insubordination

muted
could

acceptance

raise

of

concern

of

If

Jones’s
disparate

treatment as to Parten’s insubordination.
However, as noted above, Parten was not terminated
for insubordination alone; instead, she was terminated
for insubordination combined with alleged inappropriate
demands for free accommodations and food; not paying
for a $ 100 ticket to bring her husband to a charity
event; the use of state property in her app; and taking
pictures

for

her

app

during

work

hours.

Sentell’s

decision not to terminate Jones for one instance of
insubordination

and

one

instance

of

threatening

language--which Sentell, rightly or wrongly, did not

22

view as threatening--simply is not comparable to his
decision to terminate Parten for multiple offenses.
Parten also attempts to meet her prima-facie burden
by arguing that she did not commit some of the acts for
which she was terminated or that she had reason to
believe that her actions were permissible.
Parten

does

termination
earlier,

the

not

dispute

effectively
Tourism

most

or

at

Department

of

the

all.

However,

grounds
As

allegedly

for

discussed
terminated

Parten for a combination of actions: her unauthorized
use of Tourism Department photographs for profit in her
app; her use of state time to take photographs for her
use in her app for profit; her failure to respond in a
timely manner to Sentell’s request for a copy of the
initial version of the app; her acceptance of a free
ticket to the fundraising event to allow her husband to
attend;

her

demands

to

the

Dauphin

Island

tourism

official for food and housing and her use of Sentell’s
name in so doing.
First, Parten admits that some of the photographs

23

she used in her app were ones that she took at work
using a Tourism Department camera.
rebut

this

justification,

she

In an attempt to

contends

that

Sentell

used state photographs in a book he wrote and that he
was

prohibited

from

publishing

it

as

a

result.

However, Sentell testified that he completed the book
before he started working at Tourism; that he obtained
permission

from

the

Department

to

use

the

Tourism

Department pictures that appear in the book; and that
the

book

actually

was

published.

Parten

has

not

presented any evidence--only allegations--to rebut this
testimony.

Accordingly,

Parten’s

attack

on

this

justification for her termination fails.
Parten also disputes the charge that she failed to
respond in a timely manner to Sentell’s request for a
copy of the initial version of the app.

Parten offers

four arguments as to why the court should discount this
ground for her termination.

First, she argues that

this charge is pretext because she told Sentell when he
first asked that she did not know if she could get a

24

copy of the original version of the app, as she thought
it existed only online.

However, it is clear that,

even though she did give that caveat, she agreed to
inquire with the company that produced that app about
whether they had a copy.

Given that she agreed to make

the inquiry, it was reasonable for Sentell to expect a
response.

Next,

Parten

argues

that

she

actually

responded to Sentell a week after he had requested the
information by telling his executive assistant that it
was not possible to get a copy of the initial version
of

the

app.

However,

Sentell

denied

learning

of

Parten’s news from his assistant, and Parten has no
evidence

to

dispute

the

contention

unaware she had responded.

that

Sentell

was

Third, Parten argues that

Sentell called the app company himself to find out if a
copy of the initial app was available sometime in the
fall

of

2012

accordingly,
Parten

after

and

that
that

learned
he

did

that
not

time.

it

need

However,

was
a
an

not,

and,

response

from

employer

is

entitled to have an employee respond to his request for

25

information, whether he needs the information or not.
Finally,

Parten

argues

that

she

directly

informed

Sentell in January 2013 that she was unable to get a
copy.
untimely.

However,

at

that

point,

her

response

was

For these reasons, Parten has not rebutted

this ground for her termination.
Parten also was terminated for bringing her husband
to the charity-fundraising event without paying $ 100
for a ticket.

To rebut this ground, Parten points to

evidence that she attended the event at the request of
one of the organizers and one of the hosts of the event
and

that

Sentell

approved

her

travel

to

the

event.

Parten also denies that she used Sentell’s name to get
into the event and contends that she did not know the
tickets cost $ 100 each or that she was supposed to pay
for the tickets.

However, she has not rebutted the

fact that the event had a $ 100 admission price or that
she brought her husband to the event although he had
not been invited to attend for free.

Furthermore, the

key issue is not whether she thought she was doing

26

something

wrong;

reasonably

the

believed

key
she

issue
had

is

Sentell

something

done

whether

wrong.

Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir. 1989)
(“For purposes of Title VII analysis, it is thus of no
consequence that Jones now disputes the charges. The
law is clear that, even if a Title VII claimant did not
in fact commit the violation with which he is charged,
an employer successfully rebuts any prima facie case of
disparate

treatment

by

showing

that

it

honestly

believed the employee committed the violation.”); Damon
v.

Fleming

Supermarkets

Of

Florida,

Inc.,

196

F.3d

1354, 1363 n.3 (11th Cir. 1999) (“An employer who fires
an employee under the mistaken but honest impression
that the employee violated a work rule is not liable
for discriminatory conduct.”); McCall v. Johanns, 2008
WL

895347,

(“[W]ith

at

*7

(M.D.

disciplinary

termination,

the

Ala.

2008)

infractions

employer

need

(Thompson,
that

not

be

lead
correct

J.)
to
in

believing that an event that leads to a job action
occurred;

the

employer

need

27

only

have

a

good-faith

belief that the event occurred.”).

Parten has failed

to introduce evidence suggesting Sentell did not.
Parten also denied that she pressured Brown, the
Dauphin Island tourism official, to provide her and the
travel writer with free luxury accommodations or meals.
However, as noted above, the key issue is not whether
she actually committed the offenses of which she was
accused, but whether Sentell had a good-faith basis for
believing
Parten

she

had

testified

committed
that

she

those

offenses.

believed

Sentell

While
had

put

Brown up to making the complaint against her, Parten’s
belief is not evidence.

Lacking evidence that Sentell

knew the allegations were false and put Brown up to
making

them,

Parten

has

failed

justification for her termination.

to

rebut

this

Accordingly, Parten

has failed to establish a prima-facie case of disparate
treatment.
Moreover, as Parten has not been able to rebut the
proffered justifications for her termination, she has
also

failed

to

show

that

28

those

justifications

are

pretext for sex discrimination.
The motion for summary judgment will be granted in
the Tourism Department and Sentell’s favor on Parten’s
Title VII disparate-treatment claim.

B. Title VII Retaliation Claim
Parten claims that, in violation of Title VII, she
was

terminated

discrimination.

in

retaliation

for

complaining

of

The Tourism Department argues that it

is entitled to summary judgment on this claim because
Parten failed to exhaust administrative remedies and
failed

to

show

that

the

department’s

reasons

for

terminating her were a pretext for retaliation and that
retaliation was the but-for cause of her termination.
The court will address each argument in turn.

1. Failure to Exhaust
Before

filing

a

Title

VII

action,

“a

plaintiff

first must file a charge of discrimination with the

29

EEOC.”
F.3d

Gregory v. Georgia Dep’t of Human Res., 355
1277,

Department

1279
argues

administrative
activity

(11th

she

Cir.

that

2004).

Parten

remedies

in

her

Tourism

to

exhaust

failed

because

mentioned

The

the

only

EEOC

protected

charge

was

the

complaint she made to the Governor’s Office, but her
lawsuit mentions only the complaints she made to the
attorney for the State Personnel Board.
charge

states:

Governor’s
subjected
Charles

“In

June

Officer,
to

by

Sentell.

of

my
...

Support

Motion

Since

against.”

I

complained

harassment

Supervisor

retaliated
of

2012,

and

that

I

the

being

Department

Head,

complaining,

Summary

to

was

Evidentiary

for

Parten’s EEOC

I

have

Submission

Judgment

(Doc.

been
in
No.

25-21).
The
position.

case

law

does

not

support

the

department’s

A plaintiff’s EEOC charge need not be a

precise pleading; indeed, because courts are “extremely
reluctant

to

allow

procedural

technicalities

to

bar

claims brought under Title VII, ... the scope of an

30

EEOC

charge

Gregory,

355

omitted).
were

should
F.3d

not

at

be

1280

strictly

(internal

interpreted.”

quotation

marks

The question is whether charges in a lawsuit

“like

or

related

to,

or

grew

out

of,

the

allegations contained in [the] EEOC charge” such that a
“reasonable EEOC investigator” could have accomplished
her

role

of

investigating

settlement of the claim.
Gregory

provides

standard.

In

and

seeking

voluntary

Id.

an

that

example
case,

of

the

this

generous

plaintiff,

an

African-American doctor hired by a state hospital, was
fired six months after making internal complaints to
management about discrimination.

On her EEOC charge,

she

stated

reason”

that

and

discrimination
1278-79.
had

she

was

fired

for

checked

the

boxes

for

but

not

for

“no
race

retaliation.

legitimate
and
Id.

sex
at

Nevertheless, the appellate court found she

exhausted

her

retaliation

claim

with

the

EEOC

because a reasonable investigator would have examined
the reasons for Gregory’s firing and realized it was

31

related to earlier complaints about discrimination to
her supervisor.

Id. at 1280; cf. Minix v. Jeld-Wen,

Inc., 237 Fed. App’x 578 (11th Cir. 2007) (holding that
plaintiff’s

tangible-employment-action

claim

in

her

complaint was “wholly distinct” from the hostile-workenvironment claim in her EEOC filing and thus barred
for failure to exhaust).
In her complaint, Parten is not trying to raise a
new claim that is ‘wholly distinct’ from the claim in
her

EEOC

charge.

Parten’s

claim

that

she

suffered

retaliation for bringing complaints of harassment and
sex

discrimination

to

the

Personnel

Board

lawyer

is

‘like or related to’ the claim in her EEOC charge that
she was terminated for complaining of harassment to the
Governor’s

Office.

Indeed,

Parten

raised

concerns

about the same pattern of harassment by Sentell on both
instances.

In

would

asked

have

complaints

about

addition,

a

Parten
Sentell’s

reasonable

if

she

alleged

made

investigator
any

harassment

other
and

disparate treatment in the course of the investigation

32

of her EEOC charge.
grant

summary

Department

Therefore, the court will not

judgment
Parten’s

on

in

favor

of

retaliation

the

Tourism

claim

on

this

ground.

2. Pretext and But-For Causation
To

establish

retaliation

under

Title

VII,

the

plaintiff must meet the ultimate burden of showing that
the reasons given for an adverse action were a pretext
for retaliation and that retaliation was the but-for
cause of the adverse action.

Univ. of Texas Sw. Med.

Ctr. v. Nassar, 133 S. Ct. 2517 (2013).
The Tourism Department argues that Parten cannot
establish that the reasons given for her termination
were
cause

pretextual
of

discussed

her

or

that

retaliation

termination.

above

in

The
the

was

court

the

but-for

agrees.

analysis

of

As
her

disparate-treatment claim, Parten has not put forward
evidence sufficient to rebut all or even most of the
Tourism

Department’s

proffered

33

reasons

for

her

termination; she has not submitted sufficient evidence
to show that Sentell did not have a good-faith belief
that the reasons were legitimate.
forward

any

other

direct

or

Nor has she put

circumstantial

evidence

revealing retaliatory intent.
Furthermore, the lag in time between her internal
complaints and her termination undermines her claim of
a but-for causal relationship.

Parten complained to

the Personnel Department lawyer in 2011 and early 2012
and

to

the

Governor’s

Office

in

January

2012,

yet

Sentell did not terminate Parten until January 2013.
While this lapse of time does not preclude a finding of
causation, the approximately one-year lapse following
Parten’s

complaint

to

the

Governor’s

Office

and

the

one- and two-year lapses following her complaints to
the Personnel Department lawyer are simply too long for
the court to infer a causal link.

See Webb-Edwards v.

Orange Cty. Sheriff’s Office, 525 F.3d 1013, 1029 (11th
Cir. 2008) (six-month gap too long to support causation
element in retaliation case).

34

Accordingly, the court will grant summary judgment
in

favor

of

the

Tourism

Department

and

Sentell

on

Parten’s Title VII retaliation claim.

C. Americans with Disabilities Act Claim
Title I of the ADA prohibits certain employers,
including state employers such as the Alabama Tourism
Department, from “discriminat[ing] against a qualified
individual on the basis of disability in regard to job
application
discharge

procedures,
of

employees,

the

hiring,

employee

advancement,

compensation,

or
job

training, and other terms, conditions, and privileges
of employment.” 42 U.S.C. § 12112(a).
statute

requires

accommodations

to

employers
the

to

known

To this end, the

“mak[e]
physical

reasonable
or

mental

limitations of an otherwise qualified individual with a
disability who is an applicant or employee, unless [the
employer] can demonstrate that the accommodation would

35

impose

an

undue

hardship

[employer's] business.”
Parten
Sentell

does

and

department

not

the

and

on

operation

of

the

§ 12112(b)(5)(A).
clarify

Tourism

whether

the

she

whether

she
or

Department
is

suing

individual or official capacity.

is
only

Sentell

suing

in

the
his

In any case, Title I

of the ADA “does not provide for individual liability,
only for employer liability.”

Mason v. Stallings, 82

F.3d 1007, 1009 (11th Cir. 1996).

Moreover, because a

suit against a state employee in his official capacity
is treated as a suit against the state agency for which
he works, Kentucky v. Graham, 473 U.S. 159, 166 (1985),
to the extent Parten seeks damages against Sentell in
his official capacity, such a claim would be redundant.
For these reasons, the court’s analysis will focus on
the claim for damages against the Tourism Department.
The

Tourism

Department

argues

that

Parten’s

ADA

Title I claim is barred by the Eleventh Amendment to
the

United

consenting

States
States

Constitution,
from

suits

36

for

which

protects

damages

by

non-

private

citizens in federal court.

See College Savings Bank v.

Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S.
666, 669–670 (1999).

Congress can abrogate the States'

sovereign immunity when it unequivocally expresses its
intent to do so and acts pursuant to a valid grant of
constitutional

authority.

Kimel

Regents, 528 U.S. 62, 73 (2000).

v.

Fla.

Bd.

of

In Board of Trustees

of the University of Alabama v. Garrett, 531 U.S. 356,
363–64,

372–74

(2001),

the

Supreme

Court

held

that

Title I of the ADA exceeded Congress's constitutional
authority

to

proscribe

conduct

to

remedy

and

deter

Fourteenth Amendment violations for two reasons: Title
I's broad sweep was not sufficiently targeted to remedy
or

prevent

unconstitutional

discrimination

in

public

employment; and Congress failed to identify a pattern
of
the

irrational
disabled

state-employment
that

justified

discrimination

the

remedy

it

against
created.

Since Garrett, state employers have been immune from
suits for damages under Title I of the ADA.

37

Parten contends, without explanation, that the ADA
Amendments Act of 2008 (hereafter “the ADAAA”), Pub.L.
No. 110–325, 122 Stat. 3553, which was enacted years
after

Garrett,

Eleventh

effectively

Amendment

under Title I.

abrogated

immunity

from

the

suits

The court disagrees.

States’

for

damages

“Congress enacted

the ADAAA with the express purpose of rejecting the
holdings of several Supreme Court cases interpreting
the statutory provisions of the ADA.

Notably, while

the ADAAA's legislative findings specifically identify
those holdings which Congress sought to address, they
do

not

mention

Garrett

Amendment immunity.”
Corr.,

2013

(Honeywell,
ADAAA

WL
J.)

contain

discrimination

or

at

(citations
express

against

state employment.

States'

Eleventh

Adamson-James v. Florida Dep't of

1968499,

any

the

*4

(M.D.

omitted).
findings

people

with

Fla.

Nor

2013)

does

the

history

of

disabilities

in

of

a

See Garrett, 531 U.S. at 371 (noting

the absence of such a record as a reason that Congress
failed

to

abrogate

Eleventh

38

Amendment

immunity).

Finally, Parten has not pointed to, and the court has
not

found,

anything

in

the

ADAAA

that

would

alter

Garrett's conclusion that the remedies imposed by the
ADA

are

not

‘congruent

targeted violations.
See

also

the

proportional’

to

the

See Garrett, 531 U.S. at 372–74.

Adamson-James,

Accordingly,

and

court

2013
cannot

WL

1968499,

find

that

at

the

*4.
ADAAA

validly abrogated Alabama’s Eleventh Amendment immunity
from suits for damages under Title I.
Because, with Title I, Congress did not validity
abrogate the States' Eleventh Amendment immunity from
suits for damages and because the sovereign immunity
provided to the State of Alabama extends to its state
agencies, such as the Tourism Department, see, e.g.,
Florida

Dept.

of

Florida

Nursing

Health
Home

&

Rehabilitative

Ass'n.,

450

U.S.

Servs.

147

v.

(1981),

sovereign immunity prevents Parten from prevailing on
her Title I claim against the Tourism Department to
extent she seeks damages.

39

Admittedly,

in

her

complaint,

Parten

stated

her

intent to seek the injunctive relief of reinstatement
and

unspecified

equitable

remedies

violation of her ADA rights.
seeks

only

prospective,

for

the

alleged

To the extent that she

injunctive

relief

against

a

state official in his official capacity, Parten’s claim
is not barred by the Eleventh Amendment.

See Garrett,

531 U.S. at 374 n.9; see also Ex Parte Young, 209 U.S.
123

(1908).

However,

in

her

response

to

the

ADA-

related part of the motion for summary judgment, she
makes

no

argument

that

the

part

of

her

ADA

claim

seeking injunctive relief should survive in spite of
the Eleventh Amendment.

In addition, she describes her

ADA claim as based only on the Tourism Department’s
denial of her requests for a certain chair and computer
mouse and screen--not her termination.
argue

that

accommodations
termination.

her
was

request
in

any

for
way

She does not

these
related

purported
to

her

The court cannot conceive of equitable

relief that would address the accommodations claim she

40

currently advances.

Accordingly, the court finds that

she has abandoned her claim for injunctive relief under
the ADA.

See

Resolution Trust Corp. v. Dunmar Corp.,

43 F.3d 587, 599 (11th Cir. 1995) (“There is no burden
upon

the

district

court

to

distill

every

potential

argument that could be made based upon the materials
before it on summary judgment. ... Rather, the onus is
upon

the

parties

to

formulate

arguments;

grounds

alleged in the complaint but not relied upon in summary
judgment are deemed abandoned.”) (citations omitted).8
Accordingly, the court will grant summary judgment
in

favor

of

the

Tourism

Department

and

Sentell

on

Parten’s ADA claim.

D. First Amendment Claim
Parten

contends

that

Sentell

and

the

Tourism

Department violated her right under the First Amendment
8. The Tourism Department also argues
cannot establish the elements of her
Because the court grants summary judgment
the
department on other bases, it need
this argument.
41

that Parten
ADA claim.
in favor of
not address

by telling her not to mention tourism or travel on her
personal Twitter account and not to use a certain font
on Twitter, and by ordering her to take down her civilrights mobile app.
Sentell

violated

Parten contends that, by doing so,

her

right

to

freedom

of

expression

under the First Amendment.

1. Tourism Department
Although
clear

that

not

specified

Parten

brings

in
her

her

complaint,

First

Amendment

it

is

claim

pursuant to 42 U.S.C. § 1983.
There is no question that the Eleventh Amendment
bars Parten from suing the State of Alabama directly
under

§

1983

and

that

state

agencies

share

this

absolute immunity from suit. See Alabama v. Pugh, 438
U.S. 781, 782 (1978) (“There can be no doubt, however,
that

suit

against

the

State

and

its

Board

of

Corrections is barred by the Eleventh Amendment, unless
Alabama has consented to the filing of such a suit.”).
Because Parten’s First Amendment claim under § 1983 is

42

asserted directly against the Tourism Department, both
for damages and for equitable relief, summary judgment
in favor of the department on this claim is appropriate
in all respects. See Edwards v. Alabama Dep't of Corr.,
81 F. Supp. 2d 1242, 1251 (M.D. Ala. 2000) (Thompson,
J.).
The court will, therefore, turn to Parten’s First
Amendment claim against Sentell in his individual and
official capacities.

2. Sentell in His Individual Capacity
Parten may seek only damages from Sentell in his
individual capacity because, in that capacity, he is
not in a position to afford any other relief; only in
his official capacity could he give equitable relief.
Sentell responds with the defense of qualified immunity
to

Parten’s

request

for

damages

from

him

in

his

individual capacity.
In
invoking

a

damages
the

suit

defense

of

under

§

qualified

43

1983,

a

immunity

defendant
has

the

initial burden of showing that he was acting within the
scope of his discretionary authority.

Lee v. Ferraro,

284 F.3d 1188, 1194 (11th Cir. 2002).
has

shown,

and

Parten

concedes,

Here, Sentell

that

he

was

acting

within his discretionary authority when he engaged in
the challenged conduct.
Once the defendant makes this showing, “the burden
shifts to the plaintiff to show that qualified immunity
is

not

forward

appropriate.”
evidence

and

Id.

The

plaintiff

put

to

argument

must
that

the

show

defendant committed a constitutional violation and that
the law was clearly established at the time of the
violation, so that the defendant would have been “on
notice

that

his

conduct

[was]

unlawful.”

Hope

v.

Pelzer, 536 U.S. 730, 731 (2002).
Parten has failed to meet this burden.

She has

cited no authority to show that the law was clearly
established

at

the

time

Sentell

acted

that

he

had

violated her First Amendment right to free expression.
In

addition,

the

court

has

44

not

uncovered

any

First

Amendment case law established by either the Eleventh
Circuit or the Supreme Court divining a line, or lines,
that Sentell could not cross in telling Parten what she
could and could not do with regard to her app or her
Twitter
here.

account,

under

the

circumstances

presented

Parten’s development of her civil-rights mobile

app was intimately interrelated with her duties as the
Tourism

Department’s

Public

Information

Manager,

and

the separation between her private Twitter account and
the Tourism Department’s Twitter account was murky at
best.9

There is no way Sentell could have known, in the

specific

circumstances

violated

Parten’s

indeed, he had.
granted

on

presented

First

here,

Amendment

that

right

he

had

even

if,

Accordingly, summary judgment will be

Parten’s

First

Amendment

claims

against

Sentell in his individual capacity.

9. Parten initially began tweeting for the Tourism
Department from her personal @ALTourist Twitter account
before starting a Twitter account for the department
under the name @TweetHomeAla.
45

3. Sentell in His Official Capacity
Because, as stated above, the Eleventh Amendment
bars a § 1983 damages suit against a State as well as
its

agency

and

because

such

a

§

1983

damages

suit

against a state official in his official capacity is
treated as a suit against the state agency for which he
works,

Graham,

473

Eleventh

Amendment

sued

their

in

U.S.

at

immunity

official

166,

it

protects

capacities

follows

state
from

that

officials
suits

for

damages under § 1983.
However,
Parten

Sentell

seeks

only

concedes

that,

prospective

to

the

extent

injunctive

and

declaratory relief against him, the Eleventh Amendment
does not bar her suit.

See Ex Parte Young, 209 U.S.

123 (1908) (holding that sovereign immunity does not
bar

certain

prospective

suits
injunctive

against
relief).

state

officials

Parten’s

for

complaint

seeks not only compensatory damages but also immediate
reinstatement to her former position and “any and all

46

other relief in ... equity to which she may otherwise
be reasonably entitled.” Complaint (Doc. No. 1), at 18.
Therefore,

the

court

must

determine

whether

Parten’s First Amendment claim for prospective relief
can

proceed.

contours

of

The
the

first

claim

as

task
it

is

to

stands

identify

today.

In

the
her

response brief to the summary-judgment motion, Parten
contends

that

Sentell

violated

her

First

Amendment

right by suppressing her private speech about tourism
and telling her to take down her app.

Because Parten

is no longer employed by the Tourism Department and
therefore no longer subject to Sentell’s demands that
she not ‘tweet’ about certain subjects or take down her
app,

the

court

cannot

envision

any

equitable

remedy

that would address those purported violations.
Reinstatement
remedy

for

Amendment.

could

retaliatory
However,

constitute
termination
Parten

entitlement to such relief.

has

A

freedom of speech is not absolute.

47

an

appropriate

under

the

not

shown

public

First
her

employee’s

Vila v. Padron, 484

F.3d 1334, 1338 (11th Cir. 2007).

To set forth a First

Amendment claim of retaliation, a public employee must
show that (1) she was speaking as a citizen on a matter
of

public

concern;

(2)

her

interests

as

a

citizen

outweighed the interests of the State as an employer;
and (3) the speech played a substantial or motivating
role

in

the

adverse-employment

action.

Id.

If

the

plaintiff establishes these elements, the burden shifts
to the defendant to prove he would have made the same
adverse

employment

speech.

decision

absent

the

employee’s

Id.

In his summary-judgment briefs, Sentell sets forth
detailed arguments as to why Parten cannot meet any
part

of

the

legal

standard

to

establish

retaliatory

termination of a public employee in violation of the
First Amendment.

Parten does not respond at all to

these arguments, and, in what brief response she does
offer on her First Amendment claim, characterizes her
claims

simply

expression,

as

a

unlinked

violation
to

any

48

of

her

right

retaliation

to

free

or

her

termination.
First

Parten

Amendment

Resolution

Trust

accordingly

has

retaliatory-discharge
Corp.,

43

F.3d

at

abandoned

her

claim.

See

599

(11th

Cir.

1995).
Summary judgment will be granted on Parten’s First
Amendment claim.

***

For the above reasons, summary judgment will be
granted in favor of the Tourism Department and Sentell
on

all

of

Parten’s

federal

claims.

An

appropriate

judgment will be entered.
DONE, this the 20th day of April, 2015.
/s/ Myron H. Thompson____
UNITED STATES DISTRICT JUDGE