Jordan v. Alabama Department of Public Health et al

Filing 96

RECOMMENDATION OF THE MAGISTRATE JUDGE and ORDER: it is the RECOMMENDATION of the MAGISTRATE JUDGE that the dfts' 85 & 87 motions for summary judgment be and GRANTED and that this case be DISMISSED with prejudice; it is further ORDERED that dft Department of Public Health's 94 motion to strike be and is hereby DENIED; Objections to R&R due by 8/25/2015. Signed by Honorable Judge Charles S. Coody on 8/11/2015. (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
DONNA JORDAN,
Plaintiff,
v.
ALABAMA DEPARTMENT OF
PUBLIC HEALTH and STATE OF
ALABAMA PERSONNEL
DEPARTMENT,
Defendants.

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CIVIL ACT. NO. 2:14cv198-WKW
(WO)

RECOMMENDATION OF THE MAGISTRATE JUDGE and ORDER
I. INTRODUCTION
In her complaint, pro se plaintiff Donna Jordan (“Jordan”) alleges that she was
discriminated against in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e, et seq. (“Title VII”), and 42 U.S.C. §§ 1981 and 1983 when she was
denied promotions and a position reclassification based on her race.1 She also complains

1

In her complaint, Jordan alleged that the she was discriminated against in the assignment of job duties
and that she was disciplined because of her race. (Doc. # 1, Compl. at 7, ¶ 43 and 2, ¶ 2). However, she
points the court to no evidence, and a review of the record does not suggest, that the assignment of her job
duties was based on her race, or that she was subject to any discipline because of her race. The onus is upon
the parties to formulate arguments; grounds alleged in the complaint but not relied upon in summary judgment
are deemed abandoned. Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995); Road
Sprinkler Fitters Local Union No. 669 v. Indep. Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir. 1994).
Accordingly, the court concludes that Jordan has abandoned any claims that she was subjected to discriminatory
assignment of duties or discipline.
In addition, in opposition to summary judgment, Jordan asserts that she was subjected to retaliation by
her employer, the Department of Public Health. She did not raise a retaliation claim in her complaint, and she
cannot now amend her complaint to add a new claim by raising the claim in her brief in opposition to summary
judgment. See Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1314-15 (11th Cir. 2004). See also,
Austin v. City of Montgomery, 196 Fed. App’x 747, 753 (11th Cir. 2006). Consequently, the court concludes

that she was subjected to a racially hostile work environment. She names as defendants her
employer, the Alabama Department of Public Health (“Department of Public Health”), and
the State of Alabama Personnel Department (“Personnel Department”). The court has
jurisdiction of the plaintiff’s claims pursuant to its federal question jurisdiction, 28 U.S.C.
§ 1331, and the jurisdictional grant in 42 U.S.C. § 2000e–5.
Now pending before the court are the defendants’ motions for summary judgment
(docs. ## 85 & 87) and the Department of Public Health’s motion to strike evidentiary
materials (doc. # 94). The plaintiff has filed responses in opposition to the motions (docs.
## 90 & 91). After careful review of the motions, the briefs filed in support of and in
opposition to the motions, and the supporting and opposing evidentiary materials, the court
concludes that the defendants’ motions for summary judgment are due to be GRANTED,
and this case is due to be dismissed.
II. THE SUMMARY JUDGMENT STANDARD
“Summary judgment is appropriate ‘if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show there is no
genuine [dispute]2 as to any material fact and that the moving party is entitled to judgment
as a matter of law.’” Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263 (11th

that Jordan has not properly pled a retaliation claim in this action.
2

Effective December 1, 2010, the language of Rule 56(a) was amended. The word “dispute” replaced
the word “issue” to “better reflect[] the focus of a summary-judgment determination.” FED .R.CIV .P. 56(a),
Advisory Committee Notes, 2010 Amendments.

2

Cir. 2007) (per curiam) (citation omitted); FED.R.CIV.P. 56(c) (Summary judgment “should
be rendered if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine [dispute] as to any material fact and that the movant
is entitled to judgment as a matter of law.”). The party moving for summary judgment
“always bears the initial responsibility of informing the district court of the basis for its
motion, and identifying those portions of the [record, including pleadings, discovery
materials and affidavits], which it believes demonstrate the absence of a genuine [dispute]
of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may
meet this burden by presenting evidence which would be admissible at trial indicating there
is no dispute of material fact or by showing that the nonmoving party has failed to present
evidence in support of some element of her case on which she bears the ultimate burden of
proof. Id. at 322-324.
Once the defendants meet their evidentiary burden and demonstrate the absence of
a genuine dispute of material fact, the burden shifts to the plaintiff to establish, with
appropriate evidence beyond the pleadings, that a genuine dispute material to her case
exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); Celotex, 477
U.S. at 324; FED.R.CIV.P. 56(e)(2) (“When a motion for summary judgment is properly
made and supported, an opposing party may not rely merely on allegations or denials in
[her] own pleading; rather, [her] response must . . . set out specific facts showing a genuine
[dispute] for trial.”). A genuine dispute of material fact exists when the nonmoving party
3

produces evidence that would allow a reasonable fact-finder to return a verdict in her favor.
Greenberg, 498 F.3d at 1263.
To survive the defendants’ properly supported motions for summary judgment, the
plaintiff is required to produce “sufficient [favorable] evidence” establishing a violation of
Title VII or 42 U.S.C. § 1981. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
“If the evidence [on which the nonmoving party relies] is merely colorable . . . or is not
significantly probative . . . summary judgment may be granted.” Id. at 249-250. “A mere
‘scintilla’ of evidence supporting the opposing party’s position will not suffice; there must
be enough of a showing that the [trier of fact] could reasonably find for that party.” Walker
v. Darby, 911 F.2d 1573, 1576-1577 (11th Cir. 1990) quoting Anderson, supra. Hence,
when a plaintiff fails to set forth specific facts supported by appropriate evidence sufficient
to establish the existence of an element essential to her case and on which the plaintiff will
bear the burden of proof at trial, summary judgment is due to be granted in favor of the
moving party. Celotex, 477 U.S. at 322 (“[F]ailure of proof concerning an essential element
of the nonmoving party’s case necessarily renders all other facts immaterial.”); Barnes v.
Southwest Forest Indus., Inc., 814 F.2d 607, 609 (11th Cir. 1987) (if on any part of the
prima facie case the plaintiff presents insufficient evidence to require submission of the
case to the trier of fact, granting of summary judgment is appropriate).
For summary judgment purposes, only disputes involving material facts are relevant.
United States v. One Piece of Real Prop. Located at 5800 SW 74th Ave., Miami, Fla., 363
4

F.3d 1099, 1101 (11th Cir. 2004). What is material is determined by the substantive law
applicable to the case. Anderson, 477 U.S. at 248; Lofton v. Sec’y of Dep’t of Children
& Family Servs., 358 F.3d 804, 809 (11th Cir. 2004) (“Only factual disputes that are
material under the substantive law governing the case will preclude entry of summary
judgment.”). “The mere existence of some factual dispute will not defeat summary
judgment unless that factual dispute is material to an issue affecting the outcome of the
case.” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003)
(citation omitted). To demonstrate a genuine dispute of material fact, the party opposing
summary judgment “must do more than simply show that there is some metaphysical doubt
as to the material facts. . . . Where the record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party, there is no ‘genuine [dispute] for trial.’”
Matsushita Elec. Indus. Co, Ltd., v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In
cases where the evidence before the court which is admissible on its face or which can be
reduced to admissible form indicates that there is no genuine dispute of material fact and
that the party moving for summary judgment is entitled to it as a matter of law, summary
judgment is proper. Celotex, 477 U.S. at 323-324 (summary judgment appropriate where
pleadings, evidentiary materials and affidavits before the court show there is no genuine
dispute as to a requisite material fact).
Although factual inferences must be viewed in a light most favorable to the
nonmoving party and pro se complaints are entitled to liberal interpretation by the courts,
5

a pro se litigant does not escape the burden of establishing by sufficient evidence a genuine
dispute of material fact. Beard v. Banks, 548 U.S. 521, 529 (2006); Brown v. Crawford,
906 F.2d 667, 670 (11th Cir. 1990). Thus, the plaintiff’s pro se status alone does not
mandate this court’s disregard of elementary principles of production and proof in a civil
case.
III. FACTS3
The pertinent material facts are undisputed. Jordan began her career as a social
worker with the Department of Public Health at the Montgomery County Health Department
on March 25, 2002. (Doc. # 88, Ex. A at 16; Ex. B at 1, ¶ 2). She holds a bachelor’s
degree in social work and a master’s degree in public administration. (Doc. # 88, Ex. A at
15). She transferred to the Center for Emergency Preparedness and was promoted to Public
Health Research Analyst I on April 2, 2005. (Doc. # 88, Ex. B at 1, ¶ 3). She then
accepted a lateral transfer to the Bureau of Professional and Support Services on March 18,
2006. (Doc. # 88, Ex. A at 19; Ex. B at 2, ¶ 4). Jordan’s role as a research analyst “was
to assist [her supervisor] with the [Prescription Drug Monitoring] program. (Doc. # 88, Ex.
A at 20).
3

At this stage of the proceedings, this court takes the facts alleged by Jordan as the non-movant as true
and construes them in the light most favorable to her. Stewart v. Booker T. Washington Ins., 232 F.3d 844, 848
(11th Cir. 2000) (citations omitted) (“In assessing whether there is any ‘genuine issue’ for trial, the court ‘must
view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable
to the nonmoving party” and ‘resolve all reasonable doubts about the facts in favor of the nonmovant.’
Moreover, the court must avoid weighing conflicting evidence or making credibility determinations. Instead,
‘[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his
favor.’”). Thus, the facts set forth herein are drafted relying on the undisputed facts and construing the facts
in the light most favorable to the non-moving party, Jordan.

6

In May, 2008, Jordan was promoted to a Research Analyst II position, and became
the program manager for the Prescription Drug Monitoring Program (“PDMP”). (Doc. # 88,
Ex. A at 21, 23; Def’s Ex. B at 2, ¶ 5).
As Program Manager for PDMP, Jordan’s responsibilities are to “manage the
State’s Prescription Drug Monitoring Program, which will include
management and analysis of the database, public and professional training,
Advisory Council meetings, receipt of funds and preparing reports under the
direction of the pharmacy unit director. This position will assist the
pharmacy director in ensuring compliance with the Prescription Drug
Monitoring Program law.” This position will also manage budget
expenditures for the PDMP.
(Doc. # 88, Ex. B at 2, ¶ 6).
Jordan received “exceeds standards” performance appraisals, and has received no
discipline during her employment. See Doc. # 88, Ex. B, Att. 6. She remains employed by
the Department of Public Health as the PDMP Manager.
In October 2011, Jordan approached her reviewing supervisor, Jamey Durham
(“Durham”), then Deputy Director of the Bureau of Professional and Support Services,
about reclassifying her position. (Doc. # 88, Ex. B at 3, ¶ 8; Ex. D at 2, ¶ 4). Jordan sought
a reclassification from a Research Analyst II position to Health Services Administrator II
position because her work load had increased, and she was managing the “day-to-day
operations of a statewide program.” Durham declined to request that her position be
reclassified because, according to him, there had been no change in her job duties and
responsibilities since she began in the position in 2008. (Id.)

7

Jordan filed a complaint with the Equal Employment Opportunity Commission
(“EEOC”) on September 19, 2012 alleging race discrimination. The EEOC issued a right
to sue letter on December 23, 2013, and this lawsuit followed on March 21, 2014.
IV. DISCUSSION
A.

Motion to Strike

Before addressing the defendants’ motions for summary judgment, as an initial
matter, the court disposes of the Department of Public Health’s motion to strike (doc. # 94).
The defendant requests the court strike certain information relied on by the plaintiff in
opposition to the pending motions for summary judgment. The defendant argues that
several of the plaintiff’s evidentiary submissions are not admissible and should be stricken
because they are not authenticated; they are self-serving and conclusory; or they do not
meet the requirements of FED. R. CIV. P. 56.4 The court is capable of sifting through the
plaintiff’s evidentiary submissions and considering only those portions which are either
based on personal knowledge or are not being offered for the truth of the matter asserted.
To the extent that the material contains information not based on personal knowledge, the
court has not considered that material in resolving the motions for summary judgment.
Furthermore, the defendant has not asserted that it has been prejudiced by the plaintiff’s
evidentiary submissions, and thus, the defendant’s motion to strike will be denied.

4

FED . R. CIV . P. 56(c)(4) requires that “an affidavit or declaration used to support or oppose a motion
must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the
affiant or declarant is competent to testify to the matters stated.”

8

B. Personnel Department’s Motion for Summary Judgment
Defendant Personnel Department asserts it is entitled to summary judgment because
(1) it enjoys Eleventh Amendment immunity from suit, and (2) it is not Jordan’s employer
for purposes of Title VII. The court agrees on both counts.
The law is well established that the Personnel Department, as a department of the
state, is absolutely immune from suits for monetary damages. Papasan v. Allain, 478 U.S.
265 (1986) (The Eleventh Amendment to the Constitution of the United States proscribes
suits at law and in equity against a state, its agencies or departments unless the state
consents to be sued). The courts have recognized two exceptions to Eleventh Amendment
immunity which do not apply to the facts of this case. First, Congress can abrogate
Eleventh Amendment immunity. Carr v. City of Florence, Ala., 916 F.2d 1521, 1524 (11th
Cir. 1990) (citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 (1985)). Second,
a state’s legislature may waive Eleventh Amendment immunity. Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 100 (1984). However, Congress has not abrogated
Eleventh Amendment immunity in 42 U.S.C. § 1981 claims, and the state of Alabama has
not waived its immunity in this case. See Bd. ofTr. of Univ. of Ala. v. Garrett, 531 U.S.
256 (2001).
“[I]n the absence of consent[,] a suit in which the State or one of its agencies
or departments is named as the defendant is proscribed by the Eleventh
Amendment.” Pennhurst State School & Hospital v. Halderman, 465 U.S.
89, 100, 104 S.Ct.900, 908, 79 L.Ed. 2d 67 (1984). Neither of these
exceptions apply in this case.
9

Carr, 916 F.2d at 1525 (alterations in original).
Consequently, because the plaintiff seeks only monetary damages against the
Personnel Department, the court concludes that the plaintiff’s § 1981 and 1983 claims are
barred by the doctrine of sovereign immunity.
To the extent that Jordan attempts to bring Title VII discrimination claims against the
Personnel Department, the Department’s motion for summary judgment is due to be granted
because the Department is not her employer. Title VII prohibits discrimination against “any
individual” with regard to that individual’s terms and conditions of employment or
application for employment. See 42 U.S.C. § 2000e-2(a) (1994).5 “[O]nly those plaintiffs
who are “employees” may bring a Title VII suit.” Llampallas v. Mini-Circuits, Lab, Inc.,
163 F.3d 1236, 1242 (11th Cir. 1998). Jordan does not dispute that the Personnel
Department is not her employer, and she does not allege or point the court to any contrary
facts that suggest she is employed by the Personnel Department. Consequently, the
Personnel Department is not subject to suit under Title VII because Jordan has failed to
establish a genuine dispute of material fact concerning whether the Personnel Department
is her employer. Thus, any Title VII discrimination claims against this defendant are due
to be dismissed.

5

42 U.S.C. § 2000e-2(a)(1) makes it unlawful for an employer “to fail or refuse to hire or to discharge
any individual, or otherwise to discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national
origin;...”

10

C. The Department of Public Health’s Motion for Summary Judgment
The plaintiff alleges that she has been discriminated against based on her race in
violation of Title VII6 and 42 U.S.C. § 1981.7 The same prima facie elements required to
prove a 42 U.S.C. § 1981 discrimination claim are also required to prove a Title VII
discrimination claim. Patterson v. McLean Credit Union, 491 U.S. 164 (1989); Brown v.
American Honda Motor Co., 939 F.2d 946 (11th Cir. 1991). The allocation of burdens and
elements of a prima facie case are the same for employment claims stemming from Title VII
and section 1981. See Richardson v. Leeds Police Dep’t, 71 F.3d 801, 805 (11th Cir.
1995); Turnes v. AmSouth Bank, N.A., 36 F.3d 1057, 1060 (11th Cir. 1994); Howard v. BP
Oil Co., Inc., 32 F.3d 520 (11th Cir. 1994). Thus, the court will not discuss these claims
separately.
In an employment discrimination case, Jordan bears the ultimate burden of proving
that the Department of Public Health intentionally discriminated against her. Texas Dep’t.

6

42 U.S.C.A. § 2000e-2(a)(1) provides: “It shall be an unlawful employment practice for an employer
to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race,
color, religion, sex or national origin.”
7

Section 1981 provides, in pertinent part:

(a) All persons within the jurisdiction of the United States shall have the same right in every
State . . . to make and enforce contracts, . . . and to the full and equal benefit of all laws and
proceedings for the security of persons and property as is enjoyed by white citizens, . . .
(b) For purposes of this section, the term “make and enforce contracts” includes the making,
performance, modification, and termination of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual relationship.
42 U.S.C. § 1981.

11

of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). This Circuit has consistently held
that federal courts, in resolving discrimination claims, do not review the accuracy of an
employer’s employment decision. See e.g., Jones v. Bessemer Carraway Med. Ctr., 151
F.3d 1321, 1324 n.16 (11th Cir. 1998) (explaining that “Title VII is not a shield against
harsh treatment at the workplace. . .”).
To defeat the defendant’s motion for summary judgment, Jordan must first establish
a prima facie case of discrimination by one of three generally accepted methods: (1)
presenting direct evidence of discriminatory intent; (2) presenting evidence to satisfy the
four-part circumstantial evidence test set out in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); or (3) presenting statistical proof. Carter v. City of Miami, 870 F.2d 578,
581 (11th Cir. 1989). Jordan has not presented any direct evidence of discrimination nor
does she rely on statistical evidence to support her discrimination claims.8 Thus, the court
turns to whether Jordan has established circumstantial evidence of discrimination.
The Supreme Court in McDonnell Douglas Corp., supra, created the now familiar
framework for the burden of production and order of presentation of proof to analyze
circumstantial evidence of discrimination. See Nix v. WLCY Radio/Rahall Commc’ns, 738
F.2d 1181, 1184 (11th Cir. 1984). Once Jordan establishes a prima facie case, the

8

A plaintiff may state a claim for discrimination by alleging facts that, if believed, would qualify as
direct evidence of the employer’s intent to discriminate on the basis of gender. Chapter 7 Trustee v. Gate
Gourmet, Inc., 683 F.3d 1249, 1257 (11th Cir. 2012). Direct evidence of discrimination “is evidence that
establishes the existence of discriminatory intent behind the employment decision without any inference or
presumption.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).

12

Department of Public Health then has the burden of producing “some legitimate, nondiscriminatory reason” for the challenged employment action. See McDonnell Douglas,
411 U.S. at 802. If the Department of Public Health satisfies this burden, Jordan must then
establish, by a preponderance of the evidence, that the articulated reasons were mere pretext
for intentional discrimination. Burdine, 450 U.S. at 256. In the summary judgment context,
Jordan need only present evidence from which a trier of fact could conclude the defendant
intentionally discriminated against her on a constitutionally impermissible basis.
In her complaint, Jordan alleges that Department of Public Health failed to promote
her to the position of Assistant Pharmacy Director because of her race in violation of Title
VII and 42 U.S.C. §1981. Liberally construing her complaint,9 she also complains that she
has been subjected to disparate treatment based on her race because the Department of
Public Health failed to reclassify her position from Research Analyst II to a Health Services
Administrator II position. Jordan compares herself to Tim Hatch, Robert Kurtt and Kuma
Girdner.10 According to Jordan, these employees’ positions were reclassified to Health
Services Administrator II positions, but Durham refused to request that her position be
reclassified. She contends that his refusal to request reclassification is due to her race.

9

The plaintiff pursues this action pro se and her pleadings are not a model of clarity.

10

The Department of Public Health compares Jordan to Tim Hatch and Robert Kurtts but it also
compares her to Jonathan Edwards, Elizabeth Cagle and Belinda Hensley. Jordan does not refer to or mention
Edwards in her complaint or in her response to summary judgment. With respect to Cagle and Hensley, in her
deposition, Jordan specifically disavows that these women are her comparators. (Doc. # 88, Ex. A at 193).
Consequently, the court does not consider Edwards, Cagle or Henlsey as comparators to Jordan.

13

Finally, she alleges that she was subjected to a racially hostile work environment. The
court addresses each claim seriatim.
1.

Discriminatory Promotion Claim - Assistant Pharmacy Director

Jordan alleges that she was denied a promotion to the position of Assistant Pharmacy
Director/Deputy Pharmacy because of her race. The Department of Public Health argues
that Jordan cannot establish a prima facie case of race discrimination with respect to this
position because she was not qualified for the position. While Jordan admits that she did
not meet the qualifications for the position, she asserts that she could do the job.
The court quickly disposes of this claim. Jordan has failed to demonstrate a prima
facie case of race discrimination. To establish a prima facie case of discriminatory
promotion, Jordan must demonstrate (1) that she is a member of a protected class and (2)
that she was qualified and applied for the promotion (3) but she was rejected despite her
qualifications (4) in favor or an equally or less qualified employee who was not a member
of her class. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1089 (11th Cir. 2004). See
also Jefferson v. Burger King Corp., 505 Fed. App’x 830, 833 (11th Cir. 2013). It is
undisputed that the Assistant State Pharmacy Director position required “[g]raduation from
a recognized school of pharmacy” and “[p]ossession of a license to practice pharmacy
issued by the Alabama State Board of Pharmacy.” (Doc.# 88, Ex. B, Att. 8). Jordan
concedes that she did not meet the qualifications for the position of Assistant Pharmacy
Director/Deputy Pharmacy because she has not graduated from a recognized school of
14

pharmacy and she is not a licensed pharmacist in the State of Alabama. (Doc. # 88, Ex. A
at 131). Consequently, she has failed to establish a prima facie case of discrimination, and
the defendant’s motion for summary judgment on this claim is due to be granted.
2. Disparate Treatment - Reclassification to a Health Services Administrator II
position.
To prevail on a Title VII employment discrimination claim, a plaintiff must be able
to show that her employer intended to discriminate against her on the basis of race. Smith
v. Lockheed-Martin Corp., 644 F.3d 1321, 1327-28 (11th Cir. 2011). This is generally
accomplished by a demonstration that the defendant treated the plaintiff differently than
other similarly-situated people who were not in the plaintiff’s protected class. Id.
Jordan alleges that she was treated differently from other employees when Durham
refused to reclassify her position. The court construes this claim as a disparate treatment
claim.11 To establish a prima facie case of disparate treatment under Title VII, Jordan must
show that (1) she belongs to a protected class; (2) she was qualified to do her job; (3) she

11

The defendant asserts that Jordan cannot establish a prima facie case of discriminatory promotion
because she did not apply for the three reclassified positions. The defendant is correct that to establish a prima
facie case of discriminatory promotion, Jordan must demonstrate (1) that she is a member of a protected class
and (2) that she was qualified and applied for the promotion (3) but she was rejected despite her qualifications
(4) in favor or an equally or less qualified employee who was not a member of her class. Jefferson v. Burger
King Corp., 505 Fed. App’x 830, 833 (11th Cir. 2013). See also Wilson v. B/E Aerospace, Inc., 376 F.3d
1079, 1089 (11th Cir. 2004).
However, the defendant misconstrues the plaintiff’s claim. The court does not read Jordan’s complaint
as asserting a claim that she was denied promotions to the three specific Health Services Administrator II
positions after the positions were reclassified. Throughout her pleadings, Jordan consistently complains that,
although she requested that her position be reclassified to an Health Services Administrator II position, the
request was never made. Her disparate treatment claim rests on the theory that her position has not been
reclassified, and her supervisor will not request the position be reclassified, because she is African-American.

15

was subjected to an adverse employment action; and (4) her employer treated similarly
situated employees outside her classification more favorably. See Walker v. Mortham, 158
F.3d 1177, 1193 (11th Cir. 1998); Holifield v. Reno, 115 F.3d 1555, 1561 (11th Cir. 1997).
The parties do not dispute that Jordan is African-American. They do disagree, however,
as to whether similarly situated persons outside of Jordan’s protected class received more
favorable treatment than her.
The question of whether the plaintiff is similarly situated with non-minority
employees is crucial. See Marshall v. Western Grain Co., Inc., 838 F.2d 1165, 1168 (11th
Cir. 1988) (citing Kendall v. Block, 821 F.2d 1142 (5th Cir. 1987) (holding that Caucasian
employees with a different grade level were not similarly situated with the plaintiff)).12 After
careful review, the court concludes that Jordan has failed to come forward with any
evidence that she was similarly situated to others at the Department of Public Health.
Jordan compares herself to Tim Hatch, Robert Kurtts and Kuma Girdner. She argues
that these employees were treated more favorably than her because their positions were
reclassified while her position was not. Jordan asserts that when these employees were
selected to fill the positions after reclassification, they, in essence, received promotions.13

12

See Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), adopting as binding
precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on
September 30, 1981.
13

Jordan does not argue that she was denied promotions to the reclassified positions because she
admits that she did not apply for the positions after reclassification. See Doc. # 91 at 15 “The Plaintiff did not
apply for a CEP position. The Plaintiff requested a promotion (classification reallocation) from Research
Analyst II to Health Services Administrator II. . .”)

16

According to Jordan,
although “ADPH may be allowed to reclassify or reallocate a position, it does
not have to be done”; however, it was done for three Caucasians within the
Plaintiff’s Bureau under the supervision of Jamey Durham, Bureau Director.
These reallocations took place during the same time frame of the Plaintiff
filing an EEOC due to racial discrimination. The three Caucasians are: Tim
Hatch-Caucasian, Robert Kurtts-Caucasian, and Kuma Girdner (Caucasian).
Specifically, Kuma Girdner (Caucasian) received a reallocation from the
Public Health Research Analyst II to Health Services Administrator II on May
9, 2013. Ms. Girdner received the same promotion the Plaintiff (AfricanAmerican) requested prior to filing a discrimination case with the EEOC and
lawsuit with the court. The Plaintiff was reachable on the same Health
Services Administrator II register that all three Caucasians received their
promotions/reallocations.
(Doc. # 90 at 6; Doc. # 91 at 7).
It is undisputed that the three reclassified positions were in the Center for Emergency
Preparedness and were not in Jordan’s Prescription Drug Monitoring Program, the Pharmacy
Unit, or the Office of Professional and Support Services. More importantly, however,
Jordan presents no evidence that the job responsibilities or duties of the three reclassified
positions were similar to her job responsibilities and duties. It is well-settled law that
employees with different jobs and responsibilities are not similarly situated. See, e.g.,
McDonnell v. Gonzales, 151 Fed. App’x 780, 782-83 (11th Cir. 2005); Randall v. Unitech
Systems, Inc., 243 F.Supp.2d 822 (N.D. Ill. 2003); Ponticelli v. Zurich Am. Ins. Group, 16
F.Supp.2d 414 (S.D.N.Y. 1998). In fact, in opposition to summary judgment, Jordan
provides the memorandum requesting reclassification of Girdner’s position which
demonstrates that the reclassified position is not similarly situated to hers. (Doc. # 91, Ex.
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C.). The request for reclassification was based on the following responsibilities and duties:
The Health Services Administrator II position will serve as the
National Incident Management System (NIMS) Compliance Officer for
ADPH. This employee will ensure ADPH employees completion of NIMS
training courses consistent with their emergency responsibilities outlined by
the department. This individual will also serve as point of contact in the
completion and submission of NIMS Metrics.
This position will update and maintain the Hospital Mass Casualty
assessments to include the development and implementation of a statewide
healthcare system assessment the results of which will provide reports to
convey an accurate picture of the capability of Alabama’s hospitals to
respond to public health emergencies. In addition to Mass Casualty, this
position will also serve to maintain the Emergency Support Function-8 (ESF8) assessment and improvement plan. In working with other center staff in the
development of an ESF-8 All Hazards Assessment for completion by the
counties and public health areas, the department will be able to ascertain
accurate information regarding emergency resources and the preparedness
capabilities of response partners.
Supervision of the At Risk Population/Volunteer Coordinator will be
an essential duty of this position. This will ensure that volunteers are
recruited, trained, and managed in accordance with federal grant requirements
and departmental needs. This supervisor will also ensure that the at risk
population in Alabama is served in accordance with Health and Human
Services standards and the Department of Justice requirements.
(Id.)
It is clear that the one reason for the reclassification to Health Services Administrator
II position was to account for the supervision of the At Risk Population/Volunteer
Coordinator. It is undisputed that Jordan does not supervise any other employees.
Consequently, her position is not similarly situated to this one.
Moreover, Jordan’s mere belief that her position’s responsibilities and duties were
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similar to the reclassified positions is insufficient to demonstrate a prima facie case of
discrimination. Jordan points to the court to no evidence that the job duties of Hatch, Kurtts
and Girdner were substantially similar to her duties. Thus, this court concludes that Jordan
has failed to demonstrate that her position was similarly situated to the positions that were
reclassified. At best, Jordan presents nothing more than unsubstantiated allegations and
conclusory statements in opposition to the defendant’s motion for summary judgment with
respect to her differential treatment claim. “[U]nsubstantiated assertions alone are not
enough to withstand a motion for summary judgment.” Rollins v. TechSouth, Inc., 833 F.2d
1525, 1529 (11th Cir. 1987). See, e.g., Carter v. Three Springs Residential Treatment,
132 F.3d 635, 642 (11th Cir. 1998) (conclusory allegations without specific supporting
facts have no probative value). See also Broadway v. City of Montgomery, Ala., 530 F.2d
657, 660 (5th Cir. 1976) (conclusory statements, unsubstantiated by facts in the record, will
normally be insufficient to defeat a motion for summary judgment).
Title VII does not make unexplained differences in treatment per se
illegal nor does it make inconsistent or irrational employment practices illegal
. . . The law does not require, nor could it ever realistically require,
employers to treat all of their employees all of the time in all matters with
absolute, antiseptic, hindsight equality. What the law does require is that an
employer not discriminate against an employee on the basis of the employee’s
protected class characteristics.
E.E.O.C. v. Flasher Co., Inc., 986 F.2d 1312, 1319 (10th Cir. 1992).
In her complaint, Jordan also complains that she was denied “promotions in
classifications.” (Doc. # 1, Compl. at ¶¶ 2, 19, 32 & 43). Properly construing her
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discriminatory promotion claim, Jordan asserts that she was denied a promotion to a Health
Services Administrator II position because of her race. This claims fails it is premised on
rank speculation. Essentially Jordan seems to contend that if her position had been
reclassified she would have been promoted. As earlier noted, her discriminatory
reclassification claim fails. Her promotion claim, therefore, also fails because it is
contingent on facts which never occurred. Discrimination claims cannot be based on
hypothetical constructs.
After careful review, the court concludes that Jordan has failed to demonstrate a
prima facie case of discrimination under either a disparate treatment or discriminatory
promotion theory. The defendant’s motion for summary judgment with respect to Jordan’s
racial discrimination claim is due to be granted.
3.

Hostile Work Environment Claim

Under the law of this circuit, a plaintiff establishes a prima facie claim of racially
hostile work environment claim by showing: (1) that she belongs to a protected group; (2)
that she has been subjected to unwelcome harassment; (3) that the harassment was based
on her race; (4) that the harassment was sufficiently severe or pervasive to alter the terms
and conditions of her employment and create a discriminatory abusive working environment;
and (5) a basis for holding the defendant liable.14 Miller v. Kenworth of Dothan, Inc., 277
14

Although Title VII does not expressly refer to claims based on a racially hostile work environment,
the Supreme Court and the Eleventh Circuit recognize that Title VII is an expansive concept which “sweeps
within its protective ambit the practice of creating a working environment heavily charged with ethnic or racial
discrimination.” Mendoza v. Borden, 195 F.3d 1238, 1243 (11th Cir. 1999) (citing Henson v. City of Dundee,

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F.3d 1269, 1275 (11th Cir. 2002). See generally Mendoza v. Borden, Inc., 195 F.3d 1238,
1245 (11th Cir. 1999) (en banc).
To establish a hostile work environment, harassment must be “sufficiently severe or
pervasive to ‘alter the conditions of [the victim’s] employment and create an abusive
working environment.’” Mendoza, 195 F.3d at 1245. A plaintiff must establish that the
harassment is sufficiently severe or pervasive “to ensure that courts and juries do not
mistake ordinary socializing in the workplace . . . for discriminatory ‘conditions of
employment’” and to ensure that the courts are not creating a “general civility code.”
Gupta v. Fla Bd. of Regents, 212 F.3d 571, 583 (11th Cir. 2000).
To be successful, “a plaintiff must establish not only that she subjectively perceived
the environment as hostile and abusive, but also that a reasonable person would perceive
the environment to be hostile and abusive.” Id. Consequently, “[t]o constitute an
actionable hostile environment, conduct must be objectively sufficiently severe or pervasive
to alter the conditions of the victim’s employment and create an abusive working
environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav.
Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)) (emphasis added). It is the fourth element
– conduct sufficiently severe or pervasive to alter the conditions of employment – “that
tests the mettle of most . . . harassment claims.” Gupta, 212 F.3d at 583.
682 F.2d 897, 901 (11th Cir. 1982)). See also, Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). In
applying these standards, courts utilize the same analytical framework for evaluating sexual and racial
harassment claims. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998). See also Rogers v. E.E.O.C.,
454 F.2d 234 (5th Cir. 1971). Consequently, the court will not distinguish between cases.

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Workplace conduct is not measured in isolation; instead, “whether an
environment is sufficiently hostile or abusive” must be judged “by ‘looking
at all the circumstances,’ including the ‘frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a
mere offensive utterance’ and whether it unreasonably interferes with an
employee’s work performance.’”
Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270-71 (2001). See also Mendoza, 195
F.3d at 1246 (citations omitted); Allen v. Tyson Foods, Inc., 121 F.3d 642, 647 (11th Cir.
1997) (citing Harris, 510 U.S. at 23).
In her complaint, Jordan asserts that her direct supervisor and the Bureau Director
utilize verbal intimidating comments during conversations about Plaintiff’s
concerns regarding her working outside of her classification. The comments
include, but are not limited to, the following: “you look like hell,” “your
supervisor gives you too much latitude,”“be thankful you have a job,” “we
don’t know how we are going to pay your salary,”“everyone works outside
of their classification and you are to perform as if you are the Director of the
program.”

(Doc. # 1, Compl. at 5-6 at ¶ 33). These are the only comments to which the plaintiff points
in support of her hostile work environment claim.15
Viewing the evidence in the light most favorable to her, the court concludes that
Jordan has not established a prima-facie race-based hostile work environment claim
15

While Jordan recites that she as subjected to a “discriminatory work environment,” she alleges
absolutely no facts and makes no argument in response to the defendant’s motion for summary judgment on
this claim. She does not point to or otherwise provide the court with any evidence to substantiate her
allegations of a racially hostile work environment. The burden is on the parties to formulate arguments and
grounds alleged in the complaint but not relied upon in responding to a motion for summary judgment are
deemed abandoned. See Road Sprinkler, 10 F.3d at 1568. Accordingly, the court could conclude that Jordan
has abandoned her hostile work environment claim, and grant the defendant’s motion for summary judgment
on this claim but, out of an abundance of caution, because the plaintiff is pro se, the court addresses the merits
of her claim.

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because the record contains no evidence that the conduct about which Jordan complains was
sufficiently severe or pervasive to affect a term or condition of her employment and create
a hostile or abusive work environment. Applying the requisite factors to the totality of
these events, the court concludes that the plaintiff has failed to establish a genuine issue of
material fact regarding whether the comments about which she complains were objectively
sufficiently severe or pervasive to alter the terms and conditions of her employment and
create a hostile or abusive working environment. Jordan presents no evidence that she was
hindered in her ability to do her job as a result of these comments. In fact, all evidence
demonstrates that Jordan excelled at her job. This is not a situation where “the workplace
is permeated with discriminatory intimidation, ridicule, and insult.” Butler v. Ala. Dep’t of
Transp., 536 F.3d 1209, 1214 (11th Cir. 2008). The comments to which Jordan points are
simply not so severe or pervasive as to render the workplace objectively hostile or abusive.
Jordan’s hostile work environment claim also fails because Jordan has failed to
demonstrate that the statements about which she complains were based on her race. To
survive the defendant’s properly supported motion for summary judgment, the plaintiff must
come forward with some evidence in support of her claim that the conduct was based on her
race. Jordan points to no evidence from which the court could conclude that the comments
were motivated by her race. The mere fact that Jordan is African-American is insufficient
to demonstrate that the comments about which she complains are motivated by her race.
See Miller, 277 F.3d at 1275 (holding that, to establish a claim for a hostile work
23

environment under Title VII, the plaintiff must establish that he suffered workplace
harassment on the basis of his membership in a class protected by Title VII, such as race).
In sum, under the standards applied in this circuit, the comments about which Jordan
complain, at best fall under the rubric of mere offensive conduct, were not motivated by her
race, and thus, she has failed to create a genuine dispute of material fact about a necessary
element which is fatal to her hostile work environment claim. See Smith, 644 F.3d at 1329
(holding that the plaintiff in a Title VII employment discrimination case must present
“circumstantial evidence that creates a triable issue concerning the [defendant’s]
discriminatory intent”). Based on the foregoing, the court concludes that the defendant’s
motion for summary judgment on Jordan’s hostile work environment claim is due to be
granted.
V. CONCLUSION
Accordingly, for the reasons as stated, it is the RECOMMENDATION of the
MAGISTRATE JUDGE that the defendants’ motions for summary judgment (docs. ## 85
& 87) be and GRANTED and that this case be DISMISSED with prejudice. It is further
ORDERED that defendant Department of Public Health’s motion to strike (doc. #
94) be and is hereby DENIED. Finally, it is
ORDERED that the parties shall file any objections to the said
Recommendation on or before August 25, 2015. Any objections filed must specifically
identify the findings in the Magistrate Judge’s Recommendation to which the party objects.
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Frivolous, conclusive or general objections will not be considered by the District Court.
The parties are advised that this Recommendation is not a final order of the court and,
therefore, it is not appealable.
Failure to file written objections to the proposed findings and recommendations in
the Magistrate Judge's report shall bar the party from a de novo determination by the
District Court of issues covered in the report and shall bar the party from attacking on
appeal factual findings in the report accepted or adopted by the District Court except upon
grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir.
1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also
Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc), adopting as binding
precedent all of the decisions of the former Fifth Circuit handed down prior to the close of
business on September 30, 1981.
Done this 11th day of August, 2015.

/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE

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