Jelinek v. The Utilities Board of Tuskegee et al

Filing 62

OPINION. Signed by Honorable Judge Myron H. Thompson on 10/23/13. (djy, )

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

SUZETTE M. JELINEK,
Plaintiff,
v.
THE UTILITIES BOARD OF
TUSKEGEE, a Public Utility
organized under the laws
of the State of Alabama;
WILLIE C. ANDERSON,
individually and in his
official capacity with the
Utilities Board;
HAROLD WASHINGTON,
individually and in his
official capacity with the
Utilities Board;
LUTALO K. ARYEE,
individually and in her
official capacity with the
Utilities Board;
MAE DORIS WILLIAMS,
individually and in her
official capacity with the
Utilities Board;
GEORGETTE WHITE-MOON,
individually and in her
official capacity with the
Utilities Board;
MARK ENNIS, individually
and in his official
capacity as General

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CIVIL ACTION NO.
3:12cv462-MHT
(WO)

Manager of the Utilities
Board of Tuskegee;
GERALD LONG, individually
and in his official
capacity as Chief
Financial Officer of the
Utilities Board
of Tuskegee,
Defendants.

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OPINION
Plaintiff Suzette M. Jelinek, a former employee of the
Utilities Board of Tuskegee (“UBT”), claims that she was
discriminated against in her employment because of her
religion (Catholic), her gender (female), and her race
(white);

she

further

claims

that

she

was

retaliated

against because she complained about the discrimination.
She rests her claims on three federal provisions: She
rests her religion, gender, race, and retaliation claims
on (1) Title VII;1 and she also premises her race claim on

1. Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. §§ 1981a, 2000e to 2000e-17.
2

(2) § 19812 and (3) the Equal Protection Clause.3

She

names the following as defendants: UBT, its board members,
and various UBT employees.

Jurisdiction is proper under

28 U.S.C. § 1331 (federal question) and § 1343 (civil
rights) and 42 U.S.C. § 2000e-5(f)(3) (Title VII).
This case is now before the court on the defendants’
motion for summary judgment.

For the reasons that follow,

the motion will be granted.

I. Summary-Judgment Standard
“A party may move for summary judgment, identifying
each claim or defense--or the part of each claim or
defense--on which summary judgment is sought.

The court

shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).

The court must view the admissible

2. The Civil Rights Act of 1866, as amended, 42
U.S.C. § 1981, as enforced through 42 U.S.C. § 1983.
3. She relied on this clause as enforced through
§ 1983.

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
Jelinek, a 49-year-old white woman and a Catholic,
began work at UBT in May 2005.4
Resources

Director,

she

After two years as Human

became

Organizational Development.

the

Director

of

This lawsuit arises out of a

series of incidents that took place at UBT, eventually
culminating in her termination from employment there. She
says

that

these

incidents

amounted

to

discrimination

against her because of her race, sex, and religion.
Jelinek’s troubles began when UBT General Manager Mark
Ennis hired Gerald Long to be the Chief Financial Officer
for the organization.

Shortly after he was hired, Long

4. The parties’ filings indicate that, before May
2005, Jelinek worked with UBT as an independent
contractor.
4

gave Jelinek “an unsolicited book on Jesus Christ to read”
called “Beyond Death’s Door.”

Compl. (Doc. No. 1) ¶ 13.

Several months later, after an incident in which
employees removed from Jelinek’s office some muffins that
she intended to bring to a meeting later that day, Ennis,
Long, and another employee, Alvin Woods, held a three-anda-half-hour meeting with Jelinek in which they urged her
to convert from her Catholic faith and to “seek God.”
Pl.’s Br. (Doc. No. 37) at 3.
Jelinek contends that, after this meeting, she spoke
to Ennis about the way women were treated in the workplace
and about the impropriety of “preaching religion in the
workplace.”
memorandum

Pl.’s Br. (Doc. No. 37) at 3.
to

Jelinek

stating

that

she

Ennis sent a
had

“orally

expressed allegations that [she] ha[d] been subjected to
religious harassment and gender discrimination.”
Ex. E (Doc. No. 38-5) at 1.

Pl.’s

He explained that, given the

nature of the allegations, he felt it inappropriate for
him to be the person conducting the investigation into

5

them and that he intended to engage a third-party to
investigate her claims.
A day later, an incident occurred while Jelinek was
working with the On-Site Safety Inspection Team.

After

the group completed an inspection, the team members went
together to lunch.

One of the team’s members, Melandie

Champion, says that, during that lunch, Jelinek told
another

team

member

that

Champion

was

flirtatious” with a man who was there.
No. 39-1) at 1.

being

“openly

Pl.’s Ex. F (Doc.

Champion also says that Jelinek made a

rude comment about the orange shirts the team wore for the
safety

inspection.

Several

days

after

this

lunch,

Champion wrote a complaint about Jelinek’s comments to
Long.

Jelinek

responded

to

Champion’s

letter

by

memorandum and stated that both comments were meant to be
“innocuous” and “light-hearted.”

Pl.’s Ex. H (Doc. No.

39-3) at 1.
Jelinek later sent a memorandum to the members of UBT.
In it, she explained that she had merely told Ennis that

6

“innocent suggestions, innuendos, [and] joking criticisms
could be misinterpreted by employees and third parties”
who might overhear them.”
1.

Pl.’s Ex. I (Doc. No. 39-4) at

She reported that she was “stunned” to receive Ennis’s

memorandum contending that she had made allegations of
religious and sexual harassment and that she was confident
“the Board will conclude that there is actually nothing to
be done.”

Id.

UBT Board Chair Willie Anderson sent Jelinek a letter
stating that a law firm was being hired to investigate
“(i[]) [Jelinek’s] allegations regarding ...

religious

harassment and gender discrimination ... and (ii[]) the
complaint that was presented by ... Champion regarding
certain conduct that [Jelinek] displayed which she alleged
was offensive, harassing, and intimidating.”

Pl.’s Ex. J

(Doc. No. 39-5) at 1.
In a written opinion, the law firm concluded that,
while Jelinek “maintains that she is not making a claim of
religious discrimination against Mr. Ennis or any other

7

person, it could be seen as inappropriate and borderline
unlawful

for

management

employees

of

religious beliefs on another employee.”
No. 38-4) at 4.

UBT

to

impose

Pl.’s Ex. D (Doc.

The firm also concluded that Jelinek’s

behavior toward Champion, even if true, would not amount
to any sort of legal violation and that it was within
UBT’s discretion to decide whether Jelinek had violated
any internal policies.
While the investigation by the law firm was ongoing,
Ennis distributed a “Corporate Culture Survey” at a staff
meeting, which would be evaluated by an outside company.
Sixty-six employees completed the survey form.

The court

has been provided with summaries of the survey results
created by the outside company, but not with the surveys
themselves.

Among the “sample responses” provided about

the leadership in Human Resources, which presumably were
aimed at Jelinek, were “lies and will tell you she is
superior to all,” “treats employees disdainfully,” and

8

“lies about employees and stirs up discord.”

Defs.’ Ex.

E (Doc. No. 29-5) at 19.
A second survey was distributed several weeks later.
This time, only members of the UBT leadership completed
the survey.

The survey results (again, produced for the

court in the form of only a summary created by the outside
company) suggest a consistent view among management that
Jelinek had poor interpersonal skills.

The comments also

stated that Jelinek “Fabricates and exaggerates stories”
and “Needs to work on ... being honest.”
(Doc. No. 29-6) at 12.

Defs.’ Ex. F

Jelinek points out that all of the

individuals who completed this survey were men, that only
three

of

them

were

white,

and

that

three

of

the

participants were Ennis, Long, and Woods, who had urged
her to convert from Catholicism.
Next, Ennis performed a job analysis on Jelinek.

On

the basis of the survey results, he ranked her performance
as

“marginal”

in

the

area

9

of

“employee

relations.”

However,

the

rest

of

her

ratings

were

more

or

less

positive.
As the holidays approached, Jelinek received another
religious book titled “The Purpose of Christmas.”
time, it was Ennis who gave her the book.

This

Jelinek says

that Ennis distributed four or five copies of this book at
the office.
Some time after this, Ennis met with Jelinek and
informed her that he had determined that they should “come
to a mutual[ly] agreeable separation.”
Jelinek Dep. (Doc. No. 38-1) at 20.
that

Ennis

planned

to

do

this,

Pls.’ Ex. A,

When Long learned
he

had

Jelinek’s

administrative rights to her computer removed. Three days
later, Jelinek told Ennis that she was not going to
resign.

In a letter, Jelinek wrote that she denied any

allegations that had been made against her and stated
that, due to “multiple incidents involving harassment,
intimidation,

and

false

accusations,”

10

she

would

not

comment further without an attorney present.

Pl.’s Ex. M

(Doc. No. 39-8) at 1.
In this same time period, complaints about Jelinek
surfaced from two other UBT employees: Kenneth Sinclair
and his mother.

Sinclair’s mother alleged that Jelinek

had told her that Sinclair was not a good employee.
Jelinek had also reportedly commented to another employee,
Brandi Tate, that Sinclair was a “ladies man,” that “all
of the females love him,” and that he “wanted her.”
Defs.’ Br. (Doc. No. 28) at 8.

Jelinek, meanwhile,

alleges that Ennis and Long asked Sinclair, his mother,
and Tate to write memoranda concerning comments she had
allegedly made only after she refused to resign, the
implication being that they were seeking to amass evidence
against her.
On September 16, 2010, Jelinek completed an intake
questionnaire

with

Commission (“EEOC”).

the
Her

Equal

Employment

Opportunity

attorney subsequently sent a

letter to UBT informing it that Jelinek had initiated a

11

process with the EEOC and intended to pursue charges to
completion.

On November 19, Jelinek completed a charge of

discrimination with the EEOC in which she alleged that UBT
discriminated against her because of “[her] race, White,
sex,

female,

religion,

Catholic,

education

level

and

doctorate, and retaliated against her because [she would]
not

resign

[her

disability.”

position],

and

because

of

Pl.’s Ex. O (Doc. No. 39-10) at 2.

[her]
Jelinek

contended that Long “used religion to berate [her] and
intimidate [her], and as a basis for questioning [her]
value

as

an

employee

and

[her]

judgment

Organizational Development Director.”

Id. at 1.

as

the

She also

alleged that “Mr. Ennis recommended that [she] resign from
[her] position because of [her] disability.”
further stated that, in one incident,

Id. Jelinek

Sinclair “came up

behind [her] and aggressively slapped/grabbed [her] butt
cheek.”
incident

Id.

She alleged that she never reported the

because

she

feared

12

reprisal

from

Ennis.

Jelinek’s attorney forwarded this charge to counsel for
UBT.
In response to Jelinek’s allegations, UBT retained
Delores Boyd, a former United States Magistrate Judge, to
investigate her complaints as well as the complaints about
the incidents involving Sinclair. In her investigative and
definitely well you as a gas in an you in an is a report,
Boyd

concluded

that

Jelinek

had

indeed

commented

on

Sinclair’s reputation with women and made remarks to
Sinclair’s mother disparaging Sinclair’s work ethic. Boyd
found that Jelinek’s comments arose from “bad judgment
rather than bad motivation,” but that “they ... reflect a
consistently demonstrated workplace reputation” for poor
interpersonal skills.

Defs.’ Ex. C (Doc. No. 29-3) at 23.

She explained that “Witnesses interviewed ... provided
highly

probative

accounts

of

[Jelinek’s]

workplace

character and reputation ... which have reportedly left
the majority of employees at UBT with no, or severely
diminished, trust and confidence in her integrity.”

13

Id.

at 35.

As a result, Boyd found that disciplinary action

against Jelinek was warranted.
that

the

allegations

that

harassment were not credible.5
that

the

lock

down

of

Boyd further concluded

Jelinek

made

of

sexual

Boyd did, however, find
Jelinek’s

computer

was

inappropriate.
In this same time period, Jelinek was involved in two
additional incidents with other UBT employees.
incident, a fire alarm went off at the office.

In one
While the

alarm was still sounding, Jelinek heard Ennis call Long
and

another

building.

employee,

James

Samuel,

back

into

the

Jelinek, who alleges that she was “Safety

Director,” wrote a “formal written warning” to Ennis,
Long, and Samuel. Pl.’s Br. (Doc. No. 37) at 9.

The

defendants deny that Jelinek had any authority to issue
these warnings.

In a separate incident, an employee, Marc

Cooley, was directed to Jelinek’s office to ask about a

5. Jelinek told Boyd not to include her allegations
against Long and Ennis in the investigation, and so Boyd
did not draw any conclusions about these complaints.
14

problem with his pay.

Jelinek asked Cooley whether he had

received his annual evaluation.

When he said that he had

not, she commented that Ennis never gives evaluations and
then made suggestions for how Cooley might resolve his
issue.
On December 2, 2010, Jelinek received a letter from
Ennis that she was being suspended from work without pay.
In the letter, Jelinek was provided a number of reasons
for her suspension, including the following: (1) The
“Written Formal Warnings of Disciplinary Action” that
Jelinek issued against Long, Samuel, and Ennis for reentering the building during a fire alarm.
states

that

Jelinek

had

no

authority

to

The letter
issue

these

warnings and violated a number of internal policies.

(2)

“[D]isparaging statements” about Ennis made to Cooley.
Defs.’ Ex. H (Doc. No. 30-2) at 2-3.

Jelinek’s attorney

quickly

stating

responded

suspension
complaint.”

was

to

this

“considered

notice,

retaliation

for

Pl.’s Ex. W (Doc. No. 42-1) at 1.

15

that

the

the

EEOC

On December 30, Ennis wrote Jelinek a letter that
informed

her

terminated.
reasons

that

he

was

recommending

that

she

be

In the letter, Ennis provided the following

for

her

termination:

(1)

unacceptable

job

performance (particularly poor interpersonal conduct); (2)
Jelinek’s

remarks

about

Sinclair;

(3)

insubordination

related to the written warnings Jelinek issued about the
fire alarm incident and her comments to Cooley; and (4)
“Threatening

Behavior,”

which

was

also

based

on

the

warnings she had issued, her comments to Cooley, and
Jelinek’s secret recording of a strategic team meeting.
Pl.’s Ex. X (Doc. No. 42-2).
incidents

“separately

or

Ennis stated that these

collectively

constitute

very

serious, unacceptable major breaches of the professional
standards of conduct established for employees of UBT and
warrant dismissal.”
After

a

Id. at 3.

hearing,

the

UBT

Board

recommendation to terminate Jelinek.
this federal lawsuit.

adopted

Ennis’s

Jelinek then filed

Her complaint was muddled and the

16

court struggled to understand her claims.
pretrial

conference,

she

clarified

her

However, at the
claims,

which

consist of the following: (1) hostile-work environment on
the basis of religion in violation of Title VII, gender in
violation of Title VII, and race in violation of Title VII
and § 1981; (2) discriminatory removal of duties based on
gender and race in violation of the Equal Protection
Clause; (3) discriminatory suspension based on her gender
and race in violation of the Equal Protection Clause; (4)
discriminatory termination based on gender and race in
violation

of

the

Equal

Protection

Clause;

and

(5)

suspension and termination in retaliation for filing an
EEOC charge in violation of Title VII.6

6. Additionally, in her complaint, Jelinek alleged
violations of the Due Process Clause, but, during the
pretrial conference, she agreed that these claims had
been abandoned. Jelinek also asserted a number of statelaw claims in her complaint, which she later abandoned
too.
17

III. Discussion
A.

Hostile-Work Environment

Jelinek claim that she was subjected to a hostilework environment based on her religion, gender, and

race.

The court addresses each basis for this claim in turn.

1. Religion
A plaintiff alleging discrimination under Title VII
based

on

showing

religious

the

protected

harassment

following:

group;

(2)

“(1)

that

may

that

[s]he

establish
[s]he

has

such

belongs

been

to

subject

by
a
to

unwelcome harassment; (3) that the harassment was based on
[her] religion; (4) that the harassment was sufficiently
severe or pervasive to alter the terms and conditions of
employment and create a discriminatorily abusive working
environment; and (5) a basis for holding the employer
liable.”

Lara v. Raytheon Tech. Serv. Co., LLC, 476 Fed.

Appx. 218, 220-21 (11th Cir. 2012).
Here, this claim may be resolved by addressing the
severity prong.

In order to be sufficiently severe, the
18

harassment

alleged

must

be

“both

objectively

and

subjectively offensive,” such that it was both felt to be
offensive by its victim and would be perceived as such by
Faragher v. City of Boca Raton, 524

a reasonable person.
U.S. 775, 788 (1998).

Factors that a court considers in

determining whether the harassment was objectively severe
include:

“(1)

severity

of

the

the

frequency

conduct;

of

(3)

the

conduct;

whether

the

(2)

conduct

the
is

physically threatening or humiliating, or a mere offensive
utterance;

and

(4)

whether

the

conduct

unreasonably

interferes with the employee’s job performance.”

Ralston

v. Bell Aerospace Servs., Inc., No. 1:09CV379-MHT, 2010 WL
2403084, at *4 (M.D. Ala. June 14, 2010) (Thompson, J.).
In

her

brief,

Jelinek

describes

the

following

incidents as examples of religious-based harassment giving
rise to her hostile-work environment claim: (1) Long’s
giving her a religious book entitled “At Death’s Door,”
which she contends was unsolicited; (2) the meeting with
Ennis, Long, and Woods, in which Jelinek was told that she

19

needed

to

“seek

God”;

and

(3)

Ennis’s

giving

her

a

religious book called “The Purpose of Christmas” and
handing out a few additional copies of this book at the
office.

Jelinek alleges a number of additional incidents

in her complaint that are not addressed in any depth (or
mentioned at all) in her brief in opposition to summary
judgment.

Most of these allegations, in addition to a

number of others drawn from her deposition, are summarized
in the defendants’ brief, and Jelinek refers to this
summary without providing any detail about these incidents
herself.7

7.
The incidents summarized by the defendants in
their brief are as follows: “(1) Kathryn Sinclair,
receptionist, told Plaintiff she should have taken her
husband’s last name because the Bible states you should;
(2) Mrs. Sinclair’s placement of a flower case on her
desk with the inscription ‘I can do all things through
Christ who strengthens me’; (3) statements by Mark Ennis,
Gerald Long, and Mrs. Sinclair that she should ‘seek
Christ[,]’ following an employee dispute; (4) Mark Ennis
and Gerald Long made a statement to her that she did not
need a priest between her and her relationship with God;
(5) at a UBT holiday party, Mark Ennis stated before
everyone that he accepted Jesus Christ as his Savior; (6)
Mark Ennis stated that it was time for her husband to
seek the Lord after his mother had died; (7) at a dinner
(continued...)
20

Neither the allegations detailed by Jelinek in her
brief or at the pretrial conference nor those merely
listed in her complaint or in the list drawn from her
deposition that is compiled in the defendants’ brief
amount to harassment sufficient to create a hostile-work
environment.

In Alansari v. Tropic Star Seafood Inc., 388

Fed. Appx. 902 (11th Cir. 2010), the Eleventh Circuit
Court of Appeals considered a hostile-work-environment
claim that was, like Jelinek’s, grounded in pressure to
change the employee’s religion and a work environment that
was generally permeated with Christianity.

The plaintiff

in that case, a Muslim, alleged that he was “solicit[ed]
to go to church because ‘Jesus would save’ him,” and
subjected to “other comments about his Muslim religion,
and

the

playing

of

Christian

music

on

the

radio.”

(...continued)
at Bonefish Grill outside of work hours, the conversation
of the employees involved religion, and Mark Ennis
encouraged Plaintiff and her husband to join his church;
(8) several employees prayed to Jesus Christ at work; and
(9) Mark Ennis and Gerald Long both gave her religious
books.” Def. Br. (Doc. No. 28) at 21-22.
21

Alansari, 388 Fed. Appx. at 905.

The court concluded

that, while these incidents “may have been unwanted and
even

derogatory,

...

[they]

did

not

rise

to

[the]

threatening or humiliating level” that can form the basis
of a hostile-work-environment claim.

Id.

In other cases

in which the plaintiff has alleged a religious hostilework

environment,

the

Eleventh

Circuit

has

similarly

concluded that the mere incidence of unwelcome comments
was insufficient to form a prima facie case.
Lara,

476

F.

App’x

at

221

(finding

that,

See, e.g.,
while

the

plaintiff did suffer “unwarranted and derogatory comments
about

religion,

humiliating

about

there
the

was

nothing

content

of

threatening
those

or

offensive

statements; they [we]re more analogous to ‘mere offensive
utterance[s]’ that, although not suitable for work, do not
rise to the level of Title VII harassment”) (quoting
Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1276
(11th Cir. 2002)); MackMuhammad v. Cagle’s Inc., 379 F.
App’x 801, 805 (11th Cir. 2010) (finding that, even though

22

references to the plaintiff, who was a Muslim, in the
workplace as “Bin Laden” and “Muhammad-man” and jokes
about

his

religion

were

“rude,

insulting,

and

insensitive,” the comments “f[e]ll more in the category of
epithets or boorish behavior, which are not actionable
under Title VII”); Richardson v. Doughterty Cnty., Ga.,
185 F. App’x 785, 791 (11th Cir. 2006) (finding that the
“allegations [did] not rise to the level of severe and
pervasive harassment” where the plaintiff’s supervisor
“referred to him as ‘preacher man’ more than fifty times
and other employees made comments regarding his religion
and request for accommodation”).

As in those cases, the

conduct of which Jelinek complains is no doubt obnoxious;
the court can easily understand why unsolicited comments
about religion and an atmosphere permeated with openly
shared religious beliefs that differed from Jelinek’s own
would cause her discomfort.

However, as in the cases

cited, these incidents simply do not rise to the level of
severity contemplated by Title VII.

23

Jelinek’s evidence

falls

far

short

of

the

line

that

this

circuit

has

established between behavior that is merely noxious and
the

severe

conduct

that

creates

a

hostile-work

environment.
Accordingly, because Jelinek has not shown that any
religious harassment she suffered was “sufficiently severe
or

pervasive

to

alter

the

terms

and

conditions

of

employment and create a discriminatorily abusive working
environment,” she has not established a case of a hostilework environment based on religious discrimination. Lara,
476 F. App’x at 220-21.

2. Gender
Jelinek’s

hostile-work-environment

claim

based

on

gender may be addressed under the same legal framework
described above for religious discrimination.8

It is

8. As with a claim of religious hostile-work
environment, a plaintiff may prove such a gender claim
by showing: “(1) she belongs to a protected group, (2)
she has been subject to unwelcome harassment, (3) the
harassment was based on a protected characteristic, (4)
(continued...)
24

evident that Jelinek cannot establish a

hostile-work

environment. She provides no evidence of harassment based
on her gender in her brief, as far as the court could
tell.

Instead, the only allegations the court could

pinpoint that could be construed as gender harassment are
found in her complaint and in the defendants’ brief,
summarizing

from

her

deposition.

In

the

complaint,

Jelinek alleges that Ennis wished to keep female employees
from having offices on the top floor because “[women] were
nothing but trouble and caused cat fights.”
No. 1) at 4.

Compl. (Doc.

She further alleges that, at one point,

Ennis commented, “[This] line of work is cut out for men,
unless they are women with some serious testosterone ...
if you know what I mean[.]” Id. at 5.

Finally, Jelinek

alleges that, after she was invited to speak at the

(...continued)
the harassment was sufficiently severe or pervasive to
alter the terms and conditions of employment and create
a discriminatory abusive working environment, and (5) the
employer is responsible for such environment.” Smith v.
Naples Community Hosp., Inc., 433 F. App’x 797, 799 (11th
Cir. 2011).
25

Tuskegee Optimist Club, Ennis advised her to get a male
employee to do it instead, and said, “They are a bunch of
old men and would like to hear what a man has to say.”
Id. at 6-7.9
Jelinek does not provide any evidence about these
incidents in her brief; indeed, she does not even mention
them.

However, even if she had provided more evidence or

detail, these comments, while boorish and inappropriate,
fall

short

of

the

severity

hostile-work environment.

required

to

establish

a

Therefore, summary judgment is

due on this claim.

3. Race
Jelinek brings her hostile-work environment claim
based on race under § 1981 and the Equal Protection
Clause, in addition to Title VII.

Again, the court uses

9. The defendants’ brief addresses two additional
incidents alleged in Jelinek’s deposition: a comment by
Ennis that Jelinek should be a “mama bear” and a
statement by Long that “women are difficult to work
with.” Defs.’ Br. (Doc. No. 28) at 28.
26

the same legal framework outlined above for Title VII
hostile-work-environment claims, and the court’s analysis
under § 1981 and the Equal Protection Clause “mirrors that
under Title VII.”

Brown v. Ala. Dept. of Transp., 597

F.3d 1160, 1174 n.6 (11th Cir. 2010).

Therefore, the

court applies the same analytical framework to Jelinek’s
race-discrimination claim that it employed for her claims
of religious and gender discrimination.
Jelinek provides no evidence and no allegations in her
complaint that suggests even a whiff of a hostile-work
environment based on her white race.

Nor does she make a

single allegation in her complaint related to harassment
based on her white race.

The defendants’ brief provides

an account of her deposition testimony on this issue,
wherein she stated that “(1) she was told by several Board
members that it was ‘her or Mark Ennis’; (2) she was told
by Mark Ennis that the chairman of the Board disliked her;
(3) she was told by Mark Ennis that the chairman and other
members ‘wanted the whites to go’; (4) Gerald Long told

27

her that interracial couples were frowned upon when he
grew up; and (5) Mr. Long avoided working with her.”
Defs.’ Br. (Doc. No. 28) at 26.

None of these allegations

even approaches the sort of race-based harassment that
constitutes a hostile work environment.
At

the

pre-trial

conference,

Jelinek

offered

as

examples of race-based harassment that she was accused of
saying something about a black employee that she did not
say and that she was, in essence, held to a higher
standard than black employees.

She also, once again,

alleged that the investigations that took place were
examples of harassment.

Finally, she alleged that the

incident in which her computer was turned off was racebased harassment because the person who ordered it turned
off was a black male and of Middle-Eastern descent.

This

account does nothing to alter the court’s conclusion.
Thus, summary judgment is due on this claim as well.

28

B. Removal of Duties
In the pretrial conference in this litigation, Jelinek
stated that she wished to assert a claim of discriminatory
removal of duties, alleging that she was stripped of her
position as Safety Director after she wrote warnings to
Ennis, Long, and Samuel for reentering the office building
while

a

fire

alarm

was

sounding.

At

the

pretrial

conference, she clarified that she is alleging this was
done because of her race and gender.

Although this claim

was not clearly stated in the complaint, the court will
nevertheless address it here.
Jelinek asserts this claim under the Equal Protection
Clause as enforced through

§ 1983.

When § 1983 “is used

as a parallel remedy for violation of Title VII, the
elements of the two causes of action are the same,” and
the

court

may

framework.”
788,

793

“discuss

these

claims

under

the

same

Underwood v. Perry County Com’n, 431 F.3d

(11th

Cir.

2005)

omitted).

29

(quotations

and

citations

“Whether

an

employer

intentionally

discriminated

against an employee ... may be proved either through
direct or circumstantial evidence.”

E.E.O.C. v. Joe’s

Stone Crabs, Inc., 296 F.3d 1265, 1272 (11th Cir. 2002).
Absent any direct evidence of an employer’s discriminatory
motive, a plaintiff may establish her case using the
burden-shifting framework established by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
See id.

One way to establish a prima-facie case that an

adverse-employment

action

was

based

on

impermissible

discrimination through circumstantial evidence is to show
that: (1) the plaintiff was a member of a protected class;
(2) she was qualified for the job; (3) she suffered an
adverse-employment action; and (4) she was replaced by
someone outside of her protected class or was treated less
favorably than a similarly situated individual outside of
her protected class.

See Jones v. United States Alliance,

L.L.C., 170 F. App’x 52, 56 (11th Cir. 2006) (citations
omitted).

30

Here, Jelinek has failed to establish a prima-facie
case.
that

First and foremost, the evidence does not establish
Jelinek

actually

ever

held

the

title

of

Safety

Director and that this title was then stripped from her.
But, more importantly, she does not identify any similarly
situated person who was treated differently from the way
she was; instead, she vaguely refers to the existence of
individuals who were not white and female who received
different treatment.

Therefore, summary judgment will be

granted on this claim.

C. Suspension and Termination
Jelinek’s

next

claim

is

that

her

suspension

and

termination were based on discrimination because of her
gender

and

race.

While

Jelinek’s

suspension

and

termination were separate adverse actions, because the two
were based on the same allegations about her and because
she does not provide separate argument as to each of these
actions

in

her

brief,

this

31

court

will

address

them

together.

Again, Jelinek asserts these claims under the

Equal Protection Clause.

The court applies the legal

framework for adverse-employment actions outlined in the
previous section.
First,

the

court

addresses

Jelinek’s

claim

of

discriminatory suspension and termination based on gender.
She does not provide any direct evidence linking her
termination to her gender.
her

claim

through

She also fails to establish

circumstantial

evidence

under

the

McDonnell Douglas framework because she fails to show that
she was replaced by someone outside of her protected class
or was treated less favorably than a similarly situated
individual outside of her protected class.
F. App’x at 56.

See Jones, 170

Jelinek attempts to show that others

outside of her protected class were treated more favorably
by providing a number of examples of individuals who she
says violated UBT policies, but were treated differently
from the way she was.10

However, none of her examples

10. Jelinek alleges that the following circumstances
(continued...)
32

constitutes a valid comparator.
employees

are

establishing

similarly

a

prima

“In determining whether

situated

facie

case,

for
it

is

purposes

of

necessary

to

consider whether ... employees ... involved in or accused
of the same or similar conduct ... [were] disciplined in
different ways.”
(11th

Cir.

“‘require[s]

Holified v. Reno, 11 F.3d 1555, 1562

1997).
that

However,
the

quantity

the
and

Eleventh
quality

Circuit
of

the

comparator’s misconduct be nearly identical to prevent
courts from ... confusing apples with oranges.’”

Hawkins

v. Potter, 316 F. App’x 957, 960-61 (11th Cir. 2009)
(quoting Maniccia v. Brown, 171 F. 3d 1364, 1368 (11th
Cir. 1999)).

Here, other than the bare fact that the

(...continued)
demonstrate that similarly situated black men received
better treatment: (1) Sinclair, a black male, had no
action taken against him for not having a valid Alabama
driver’s license, even though the license is required by
UBT policy; (2) Long, a black male, cut off Jelinek’s
access to the computer system and was not punished, even
though this was done in error; and (3) Chris Thompson, a
black male, sent a message to a co-worker that said, “I
want to f--- you,” and was reprimanded and transferred,
but not terminated.
33

comparators

Jelinek

identifies

allegedly

violated

UBT

policies, the conduct she attributes to them is wholly
inequivalent to the violations of policy attributed to
Jelinek.

Moreover, she attributes only one incident to

each of the alleged comparators.
Jelinek

that

he

recommended

In his letter informing
her

termination,

Ennis

provided four separate reasons for his recommendation,
including both discrete violations of UBT policy and a
generally unacceptable job performance arising from poor
interpersonal skills.

In the suspension letter, Ennis

identifies two separate reasons for suspension.

Thus,

because she has failed to create an issue of fact for the
jury through either direct or circumstantial evidence,
Jelinek

fails

to

establish

a

prima-face

case

of

discriminatory suspension and termination based on gender.
Jelinek

is

similarly

unsuccessful

in establishing

discriminatory suspension and termination claims based on
race.

Again, she provides no direct evidence that she was

suspended or terminated because she is white.

34

She also

failed to make her case through circumstantial evidence;
for the same reasons the court described with regard to
gender discrimination, Jelinek has not presented any valid
comparators and has not shown that she was replaced by
someone who was not white.

D. Retaliation
In addition to her claims above, Jelinek asserts that
she

was

bringing

suspended
her

EEOC

and

terminated

charge.

A

in

retaliation

prima-facie

case

retaliation may be established by showing that: (1)

for
of
the

plaintiff engaged in a protected activity; (2) she suffered
an adverse-employment action; and (3) there was a causal
connection between the protected activity and the adverseemployment action.

See Freeman v. City of Riverdale, 330

F. App’x 863, 867 (11th Cir. 2009) (citing Maynard v. Bd.
of Regents of Div. Univ. of Fla. Dep’t of Educ., 342 F.3d
1281, 1289 (11th Cir. 2003).

35

The defendants do not contest that the first two
elements of the prima-facie case are met.

Therefore, the

court focuses on the third prong: causation.

To establish

the causal connection element of the prima-facie case, “a
plaintiff need only show that the protected activity and
the adverse action were not wholly unrelated.”

Clover v.

Total Sys. Servs., Inc., 176 F.3d 1346, 1354 (11th Cir.
1999) (quotations and citations omitted). In order to make
this showing, “a plaintiff must generally show that the
decision maker was aware of the protected conduct at the
time of the adverse employment action.”

Brungart v.

BellSouth Telecommunications, Inc., 231 F.3d 791, 799 (11th
Cir. 2000).

“The general rule is that close temporal

proximity between the employee’s protected conduct and the
adverse employment action is sufficient circumstantial
evidence to create a genuine issue of material fact of a
causal connection.”

Id.

Here, Jelinek succeeds in establishing a prima-facie
case by showing that an adverse-employment action followed

36

closely on the heels of her filing an EEOC charge and
making UBT aware that she was doing so.

She details the

timeline of events that culminated in her termination as
follows: On October 6, 2010, Jelinek’s attorney informed
the UBT Board that she was in the process of filing EEOC
charges; on November 29, her attorney forwarded to the UBT
Board a copy of the charge that she had filed with EEOC;
on December 2, Ennis suspended Jelinek; on December 30,
Ennis wrote a letter recommending Jelinek’s termination;
and finally, on March 15, 2011, Jelinek was terminated.
UBT’s

actions

occurred

in

close

enough

proximity

to

Jelinek’s EEOC charge to constitute circumstantial evidence
of retaliation.
Once the plaintiff establishes a prima-facie case, the
burden shifts to the employer to articulate a legitimate,
non-retaliatory
action.

reason

for

the

challenged

employment

Goldsmith v. Bagby Elevator Co., Inc., 513 F. 3d

1261, 1277 (11th Cir. 2008).

As described above, UBT

provided a number of reasons for Jelinek’s termination,

37

included
allegedly

unsatisfactory
poor

job

interpersonal

violations of UBT policy.

performance
skills

based

and

a

on

series

her
of

Thus, the court finds that the

defendants have met their burden of articulating nonretaliatory reasons for terminating Jelinek.
To satisfy her “ultimate burden of proving retaliation
by a preponderence of the evidence and that the reason
provided by the employer is a pretext for prohibited
retaliatory conduct,” Goldsmith, 513 F.3d at 1277, Jelinek
further emphasizes temporal proximity, arguing that there
is “no ... tangible evidence that indicates Defendant Ennis
was going to take any type of disciplinary action against
Dr. Jelinek prior to ... being provided with a copy of ...
[her] EEOC complaint.”

Pl.’s Br. (Doc. No. 37) at 23.

However, the Eleventh Circuit has consistently found that
temporal proximity, standing alone, is insufficient to show
that an employer’s reasons were pretextual.

See Wascura

v. City of S. Miami, 257 F.3d 1238, 1245 (11th Cir. 2001)
(collecting cases).

38

Jelinek’s

only

other

evidence

of

pretext

is

her

assertion that she was retaliated against once before, when
her computer was shut off after her meeting with Ennis in
which

he

recommended

that

they

agree

to

separate.

Jelinek’s argument appears to be that this earlier incident
with

the

computer

retaliation.

evidences

UBT’s

propensity

for

The court is unable to conclude that this

incident provides sufficient evidence that UBT’s reasons
for suspending and terminating Jelinek were pretextual.
Jelinek never alleges that her computer was locked down in
retaliation for making complaints about religious-, sex-,
or

race-based

discrimination.

The

incident

occurred

shortly after Ennis had attempted to persuade her to come
to a mutually agreeable separation with UBT, and Jelinek
argued that her computer was locked in order to coerce her
to resign.

While this incident may evidence that UBT has

a propensity to act inappropriately or unprofessionally,
it does not, standing alone, suggest that UBT tends to
retaliate

against

employees

39

who

complain

about

discrimination.

Thus, this incident is simply too thin a

reed on which to rest Jelinek’s claim that UBT’s reasons
for firing her were pretextual.
***
Accordingly,

the

defendants’

judgment will be is granted.

motion

for

summary

An appropriate judgment will

be entered.
DONE, this the 23rd day of October, 2013.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE