Stevens v. Alabama Department of Corrections, State of et al

Filing 39

MEMORANDUM OPINION. Signed by Magistrate Judge T Michael Putnam on 3/18/15. (MRR)

FILED
2015 Mar-18 PM 03:16
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION

TRACY STEVENS,

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Plaintiff,
v.
STATE OF ALABAMA
DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

Case No. 1:12-cv-3782-TMP

MEMORANDUM OPINION
This cause is before the court on the motion for summary judgment filed
May 22, 2014, by the defendants, the Alabama Department of Corrections, Kim
Thomas, Robert Danford, Bradrick Files, Grantt Culliver,1 and James DeLoach.
(Doc. 26). The motion was supported by a brief (filed one day out of time, after
seeking and receiving an extension of time) and an evidentiary submission.2
(Docs. 26, 28). After seeking and receiving an extension of time in which to
respond, the plaintiff filed an opposition to the motion, supported by evidence, on
The name was misspelled in the complaint as Grant Culiver. The Clerk is
DIRECTED to correct the style of the case to reflect the correct spelling.
1

The parties consented to the dispositive jurisdiction of the undersigned
magistrate judge on March 8, 2013. (Doc. 12)
2

1

July 16, 2014. (Docs. 33, 34). The defendants filed a brief in reply on August 4,
2014.

(Doc. 37).

The defendants further filed a motion to substitute the

declaration of Danford for the previously filed, unsigned declaration. (Doc. 37).3
Plaintiff, Tracy Stevens, a female corrections officer, alleges that her
employer, the Alabama Department of Corrections (“ADOC”), discriminated
against her on the basis of her gender. (Count One). She further asserts that after
she complained of gender discrimination, ADOC retaliated against her. (Count
Two). She also seeks redress for sex discrimination (denial of equal protection)
pursuant to 42 U.S.C. § 1983 (Count Three), asserts that defendant Files invaded
her privacy in violation of Alabama state law (Count Four), and alleges that
defendant Thomas acted with deliberate indifference by failing to stop gender
discrimination against the plaintiff (Count Five). 4

I. SUMMARY JUDGMENT STANDARD
Under Federal Rule of Civil Procedure 56(a), summary judgment is proper
“if the movant shows that there is no genuine dispute as to any material fact and

The motion was docketed as a reply, but is actually a motion and hereby is
GRANTED.
3

All of the individuals are sued in both their official and individual
capacities. The claims raised and discussed herein as Title VII employment
claims, however, are properly brought against only the employer, ADOC. See
Busby v. City of Orlando, 931 F.2d 764 (11th Cir. 1991).
4

2

the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The
party asking 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 pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (quoting former Fed. R. Civ. P. 56(c)). The movant can meet this
burden by presenting evidence showing 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 its case on which it bears the ultimate burden of proof. Celotex,
477 U.S. at 322-23. There is no requirement, however, “that the moving party
support its motion with affidavits or other similar materials negating the
opponent’s claim.” Id. at 323.
Once the moving party has met her burden, Rule 56 “requires the
nonmoving party to go beyond the pleadings and by her own affidavits, or by the
‘depositions, answers to interrogatories, and admissions of file,’ designate ‘specific
facts showing that there is a genuine issue for trial.’” Id. at 324 (quoting former
Fed. R. Civ. P. 56(e)). The nonmoving party need not present evidence in a form
necessary for admission at trial; however, he may not merely rest on his pleadings.
Celotex, 477 U.S. at 324. “[T]he plain language of Rule 56(c) mandates the entry

3

of summary judgment, after adequate time for discovery and upon motion, against
a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden
of proof at trial.” Id. at 322.
After the plaintiff has properly responded to a proper motion for summary
judgment, the court must grant the motion if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a). The substantive law will identify which facts are material and which are
irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute
is genuine “if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Id. at 248. “[T]he judge’s function is not himself to weigh
the evidence and determine the truth of the matter but to determine whether there is
a genuine issue for trial.” Id. at 249. His guide is the same standard necessary to
direct a verdict: “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law.”

Id. at 251-52; see also Bill Johnson’s Restaurants, Inc. v.

N.L.R.B., 461 U.S. 731, 745 n.11 (1983). However, the nonmoving party “must
do more than show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
The evidence supporting a claim must be “substantial,” Marcus v. St. Paul Fire

4

and Marine Ins. Co., 651 F.2d 379 (5th Cir., Unit B, 1981); a mere scintilla of
evidence is not enough to create a genuine issue of fact. Young v. City of Palm
Bay, 358 F.3d 859, 860 (11th Cir. 2004); Kesinger ex rel. Estate of Kesinger v.
Herrington, 381 F.3d 1243, 1249-1250 (11th Cir. 2004). If the non-movant’s
evidence is so thoroughly discredited by the rest of the record evidence that no
reasonable jury could accept it, the evidence fails to establish the existence of a
genuine issue of fact requiring a jury determination. See Scott v. Harris, 550 U.S.
372, 127 S. Ct. 1769, 1776, 167 L. Ed. 2d 686 (2007) (“Respondent's version of
events is so utterly discredited by the record that no reasonable jury could have
believed him. The Court of Appeals should not have relied on such visible fiction;
it should have reviewed the facts in the light depicted by the videotape.”); Lewis v.
City of West Palm Beach, Fla., 561 F.3d 1288, 1290 n. 3 (11th Cir. 2009). If the
evidence is merely colorable, or is not significantly probative, summary judgment
may be granted. Anderson, 477 U.S. at 249 (citations omitted); accord Spence v.
Zimmerman, 873 F.2d 256 (11th Cir. 1989). Furthermore, the court must “view
the evidence presented through the prism of the substantive evidentiary burden,” so
there must be sufficient evidence on which the jury could reasonably find for the
plaintiff. Anderson, 477 U.S. at 254; Cottle v. Storer Communication, Inc., 849
F.2d 570, 575 (11th Cir. 1988).

Nevertheless, credibility determinations, the

weighing of evidence, and the drawing of inferences from the facts are the function

5

of the jury, and therefore the evidence of the non-movant is to be believed and all
justifiable inferences are to be drawn in his favor. Anderson, 477 U.S. at 255. The
non-movant need not be given the benefit of every inference but only of every
reasonable inference. Brown v. City of Clewiston, 848 F.2d 1534, 1540 n.12 (11th
Cir. 1988).

II. FACTS
Applying the above-referenced standards to the evidence in the record, the
following facts appear to be undisputed, or, if disputed, are viewed in the light
most favorable to the non-moving plaintiff.
Tracy Stevens is a female employee of the Alabama Department of
Corrections, where she worked at all times relevant to this action as a corrections
officer at the Childersburg Work Release Center (“CWRC”) in Talladega County. 5
At relevant times, Kim Thomas was the Commissioner of ADOC; Robert Danford
was the warden of CWRC; Bradrick Files was a lieutenant and shift supervisor at
CWRC; Grantt Culliver was the Facilities Coordinator for ADOC, and James
DeLoach was Associate Commissioner of Operations at ADOC.

All of the

individual defendants are male. (Complaint, Doc. 1, ¶¶ 5-11).

At the time the motion was briefed, the plaintiff remained employed in the
same position at the same facility.
5

6

Stevens was hired as a corrections officer in December 1994. She was
assigned to the CWRC. Files, a lieutenant, worked as a shift supervisor. She
began working the same shift as Files in 2001 or 2002. Files kissed her once on
the lips in 2001 or 2002, but she did not report the kiss to anyone at ADOC, and
has testified that she does not consider that kiss to be part of this lawsuit. (Stevens
depo., Doc. 34-1, pp. 5-8). 6 Stevens testified that Files treated her fairly and
professionally. Id. During the first three years that Stevens was supervised by
Files on the third shift, she had “no problems” with Files. (Depo. of Stevens, Doc.
26-1, p. 11).

In 2011, both Stevens and DeWarren Baldwin were corrections

officers working together on the third shift, and both were supervised by Files.
On February 3, 2011, Files had a conversation with Baldwin in the dining
hall of the CWRC. (Doc. 1, ¶12). Files told Baldwin that Stevens “hated men
because of what her husband did to her in the past,” and said her husband had
“dogged her out.” (Depo. of Baldwin, Doc. 2-2, p. 43). Files told Baldwin that
“you could tell” Stevens didn’t like men by “the way she … treated the inmates.”
Id. at 44. Baldwin says that Files also referred to Stevens as a “dyke.” Id. at 49.

Plaintiff discusses the kiss at some length in the 89-page brief filed in
response to the motion, but the kiss is simply irrelevant to this action because it
occurred a dozen years before the act complained of, and because plaintiff never
complained of it to Files, to any ADOC official, to the EEOC, or even to any coworker. It appears that the kiss occurred just after the plaintiff gave defendant
Files a Christmas gift.
6

7

Later during the same shift, Baldwin told Stevens about the conversation he
had with Files. He told her that Files warned him to be careful who he learned
how to do his duties from. (Depo. of Stevens, Doc. 26-1, p. 92). Baldwin also told
Stevens that Files had said her husband “dogged her out,” and that she didn’t like
men. Baldwin did not tell Stevens that Files had called her a “dyke.”
The next day, on February 4, 2011, Stevens filed a complaint with Captain
Ronald Sellers. (Complaint Form, Doc. 26-3). Stevens reported that Baldwin told
her that Files said she “does not like men.” She complained that his statements
violated ADOC’s Administration Regulation 206, Section IIA, which prohibits
“derogatory descriptions or stereotypes based on race, sex, color, national origin,
age, sexual orientation, ancestry or where disability is concerned.” (Doc. 26-3).
She further reported that she had heard Files say: “Nobody eats cupcakes but kids
and punks,” and had heard Files call an inmate a “sissy.” Id. 7 She characterized
Files’ statements as “rumor(s) and derogatory comments” that created a hostile
work environment. Id. Stevens listed as the remedies she sought to have Files
demoted and transferred to another correctional facility. Id. at p. 4.
Immediately after Stevens filed the complaint, Captain Ronald Sellers
conducted an investigation that consisted of submitting written questions to

Stevens said she believes that the statements are offensive statements
relating to homosexuals (Stevens Depo., Doc. 26-1, p. 149), although there is no
direct evidence of Files’ own meaning for the terms.
7

8

Baldwin, Files, and Stevens to which each submitted written answers. Files also
submitted a separate written statement dated February 8, 2011. (Files Statement,
Doc. 26-12). In the statement, Files admitted that he told Baldwin that Stevens
didn’t like men. Id. Files explained that he made the statement “in an attempt to
show Officer Baldwin that Officer Steven’s [sic] didn’t have his best interest in
mind, and that she was in fact just using him.” Id. He said he felt that Baldwin
was not sufficiently independent and was going to be disciplined for actions, such
as incorrect bed-roster counts, that were based on Stevens’ mistakes or lack of
diligence. In deposition, Files admitted that he may have said Stevens’ husband
“dogged her out,” and that he meant that “her and her husband didn’t have a good
ending to their marriage and he didn’t treat her well.” (Files Depo., Doc. 26-6, p.
14). He further stated that he believes what he said was not discriminatory or
harassing, but that it was inappropriate and unprofessional, and that he has
apologized to Stevens. Id. at p. 27-28.8
The statement Baldwin gave as part of the investigation recounted that Files
said Stevens didn’t like men and that her husband had “dogged her out,” but it did
not report that Files used the word “dyke.” (Baldwin Decl., Doc. 26-4, p. 3). He
stated that Files made the statement when he was talking about “how the shift
should be run” and that he should “be careful about what officer [he] learned
Files disputes that he ever called Stevens a “dyke,” but for purposes of this
motion, the allegation is accepted as true.
8

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from.” (Baldwin Questionnaire, Doc. 26-11, p. 2). Baldwin stated that he never
heard Files say anything disparaging about Stevens on any other occasion, and
never saw him “mistreat Officer Stevens in any other way.” (Baldwin Decl., Doc.
26-4, p. 3). He referred to the conversation with Files about Stevens as a “onetime event.” Id.
As a result of the investigation, Sellers concluded that Files had stated that
Stevens “does not like men because when she was married her husband dogged her
out.” He further noted that the statement “does not definitively reference sexual
orientation.” (Decision, Doc. 26-5, p. 2). Sellers did, however, conclude that the
statements “were inappropriate and possibly contrary to” ADOC regulations, and
that “although inappropriate,” the remarks “were not designed as an attack” against
Stevens, but as an effort to inspire Baldwin to improve his job performance. Id.
Sellers further stated that “transfer to another institution is an option” for Stevens,
and that “the potential for a hostile working environment existed prior to [Stevens]
bringing the matter to [the EEO officer’s] attention.” Id. He further concluded
that “no residual repercussions are reasonably foreseeable.” Id.
After the investigation was concluded, Files was given a written warning,
which remains in his permanent personnel file, and Files and Stevens were
assigned to work on different shifts for some period of time. Stevens’ request that
Files be “involuntarily demoted” and transferred to another facility was denied.

10

Stevens appealed, and the decision was affirmed by the ADOC Equal Opportunity
Officer, Kimberly Weary. (Thomas Decl., Doc. 26-10, p. 3).
On February 10, 2011, while the investigation was ongoing, plaintiff
contacted DeLoach, 9 and told him that Files had referred to her by a “derogatory
term” that is used in reference to lesbians. (DeLoach Depo., Doc. 34-1, p. 62).
DeLoach responded that “no one cares about anyone’s sexuality anyway.”
(Stevens Affi., Doc. 34-1, p. 96).

DeLoach contacted Culliver about the

complaint, and Culliver “talked to the warden who looked into this incident.”
(Culliver Depo., Doc. 34-1, p. 107). No further investigation was conducted by
DeLoach or Culliver. Stevens does not know of any other witnesses who should
have been interviewed about her complaint but were not. (Stevens Depo., Doc. 341, p. 14). She has stated that she has no evidence that any mistreatment she
complains of was because she was female, as opposed to because she was alleged
to be homosexual. (Doc. 26-1, p. 88).
After the investigation concluded and Files was given a written discipline,
Stevens testified that she and Files continued to work on the same shift until
According to DeLoach’s deposition, which is the evidence referred to by
plaintiff, the contact came sometime in 2010, which would have been a year before
the alleged incident. (Doc. 34-1, p. 62). In the context of the other evidence,
however, it appears that plaintiff called DeLoach in 2011, after the statement made
the basis of this action. Plaintiff provides that as the date in her brief, and states
that date in her affidavit (doc. 34-1, p. 96), but it appears to be disputed by
DeLoach’s testimony, also provided by plaintiff.
9

11

June 2011. Stevens requested a shift change from the warden, and it was granted.
(Doc. 34-1, pp. 13-14). 10

Stevens does not allege that any other harassing

statements were made to her by Files or any other defendant after the investigation
concluded. On one occasion, Files called Stevens “sir,” but he corrected himself
and said he didn’t want to be called to the warden’s office. (Stevens Depo., Doc.
34-1, p. 32).
Baldwin has stated that, after the February incident, the working
environment changed and that Files became “strictly business.” (Baldwin Depo.,
Doc. 34-1 p. 82). After that incident, Baldwin said he “came in and did [his] job to
the best of [his] ability” in order to avoid giving Files a reason to write him up or
send him to the warden’s office. (Id.)
Stevens complains that she was retaliated against after she reported Files’
statement in 2011. She asserts that the retaliation was that she was disciplined
unfairly and not given proper respect. Specifically, she says that in May 2011, a
male inmate masturbated in front of another officer, and although Stevens did not
witness the incident, she became aware of it.

She told her supervisor, Sgt.

Caldwell, but she did not write the infraction in the incident report book until the
The accounts given of the shift changes and work situations of Files and
Stevens after the investigation are muddled, at best, in both the briefs and in the
depositions. It is undisputed, however, that there was some period of time after
which both continued to work the same shift at CWRC, and there was some period
of time in which they worked different shifts at CWRC, and that eventually in
2013 Files was transferred to another ADOC facility after he received a promotion.
10

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next day. She was initially given a two-day suspension without pay for failure to
make a timely report of a serious inmate violation, but the punishment was reduced
to a written reprimand by Commissioner Thomas after a hearing. Caldwell also
was disciplined after the incident.

(Sellers Decl., Doc. 26-9, p. 4).

Stevens

maintains that she was following Caldwell’s instructions and should not have been
given the written reprimand, but she does not deny that she failed to prepare a
written report the incident during the shift on which it occurred.
In the winter of 2012, Stevens won an award as “Top Gun of the Class.”
This award was not printed in the ADOC newsletter, although the winner of the
“Top Gun of the Year” had been previously recognized in the newsletter.
In January of 2012, an inmate was charged with insubordination after he
called Stevens a “dyke bulldag [sic] bitch,” in a conversation with another
corrections officer. The inmate was found guilty, but Captain Sellers disapproved
the punishment prescribed for the inmate, after determining that the corrections
officers who heard the statement may have provoked the inmate. (Sellers Decl.,
doc. 26-9, pp. 5-6).
Stevens further asserts that she was retaliated against by receiving a
counseling session from Files after a prisoner miscount, although two officers who
miscounted inmates the day before had not received a counseling session. She
admits however, that she sometimes had miscounts for which she did not receive a

13

counseling session (the least severe disciplinary action available). (Doc. 34-1,
p. 30.) The miscount Stevens was disciplined for was a formal count, but the one
the day before was not a formal count. A counseling session is not recorded in the
officer’s permanent personnel file.
Baldwin spoke with Culliver about his impressions that he was being
“picked on” after he told Stevens about Files’ statements, and Culliver told
Baldwin that he needed to “stay away” from Stevens because “she seems like she’s
trouble.” (Baldwin Depo., Doc. 34-1, p 79).
Stevens sought a transfer to another ADOC facility on October 2, 2012, but
her request was denied, even though a male officer had been granted a transfer in
September of 2012. ADOC’s policy was to allow transfers only when another
officer was willing to “change places” with the transferring officer. The male
officer whose transfer was approved had sought the transfer months in advance and
had demonstrated “exceptional circumstances.” 11

Danford did attempt to arrange

for Stevens to be transferred to Birmingham Work Release, but was unable to find
an officer at the Birmingham Facility who would agree to the change. Danford
was able to arrange for Stevens to be transferred to the St. Clair Correctional

The warden explained that the male officer was getting married to a
woman who lived in Huntsville, which would require several hours of commuting
each day, and that he believed that the officer would quit if he was not allowed to
transfer.
11

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Facility, which is located nearer to Stevens’ home, but Stevens declined the offer.
(Danford Decl., Doc. 26-8; Sellers Decl., Doc. 26-9).

III. DISCUSSION
Plaintiff alleges that the defendants discriminated against her and retaliated
against her after she complained about the statements Files made to Baldwin. The
defendants’ motion for summary judgment seeks summary dismissal of plaintiff’s
claims. Defendants contend that plaintiff’s Title VII discrimination claim is due to
be dismissed because: (1) the conduct complained of was not violative of Title VII;
(2) the plaintiff suffered no adverse job impact; (3) the conduct was not severe or
pervasive; (4) the defendants took reasonable action to stop the conduct
complained of; and (5) Files was not the plaintiff’s supervisor under Title VII. The
defendants further seek summary judgment in their favor on the Title VII
retaliation claims based upon the failure to show that the alleged retaliatory acts
were sufficiently adverse, or that retaliation was the but-for cause of the actions.
Plaintiff further alleges that she is entitled to relief for the same
discrimination and retaliation pursuant to Sections 1981 and 1983. Defendants
seek dismissal of those claims on the basis that her allegations do not constitute a
violation of the constitution that can be remedied through Sections 1981 or 1983.

15

Plaintiff also sets forth a state-law claim for invasion of privacy, which defendants
assert has not been substantiated by any evidence.

A. TITLE VII DISCRIMINATION CLAIMS
Title VII prohibits discrimination with respect to an employee’s
“compensation, terms, conditions, or privileges of employment because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a).
Specifically, the statute provides that it shall be 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.

2 U.S.C. § 2000e-2(a)(1). Noticeably absent from the statute is any protection
against discrimination on account of sexual orientation. The Eleventh Circuit
Court of Appeals has held that same-sex harassment, such as a homosexual
supervisor’s advances upon a same-sex employee, can be actionable under Title
VII, but specifically noted: “We do not hold that discrimination because of sexual
orientation is actionable.” Fredette v. BVP Mgmt. Assocs., 112 F.3d 1503, 1510
(11th Cir. 1997).

Other circuit courts of appeal have similarly recognized that

sexual orientation is not a protected class under Title VII. See Vicker v. Fairfield
Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006); Medina v. Income Support Div., 413
16

F.3d 1131, 1135 (10th Cir. 2005); Rene v. MGM Grand Hotel, Inc., 305 F.3d
1061, 1063 (9th Cir. 2002)(en banc); Bibby v. Philadelphia Coca Cola Bottling
Co., 260 F.3d 257, 265 (3d Cir. 2001); Simonton v. Runyon, 232 F.3d 33, 35 (2d
Cir. 2000); Hamner v. St. Vincent Hosp. and Health Care Ctr., Inc., 224 F.3d 701,
707 (7th Cir. 2000); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252,
259 (1st Cir. 1999). Courts within the Eleventh Circuit have consistently rejected
Title VII claims where the complaints were based upon discrimination that arose
from the plaintiff’s sexual orientation or perceived sexual orientation. See, e.g.,
Bostick v. CBOCS, Inc., 2014 WL 3809169 (M.D. Fla. Aug. 1, 2014); Valencia v.
Department of Interior, 2008 WL 4495694 *13 (M.D. Ala. Oct. 7, 2008); Hudson
v. Norfolk So. Ry. Co., 209 F. Supp. 2d 1301, 1315 (N.D. Ga. 2001); Fitzpatrick v.
Winn-Dixie Montgomery, Inc., 153 F. Supp. 2d 1303, 1306 (M.D. Ala. 2001). In
sum, there is no support for plaintiff’s claim that Title VII gives rise to protection
for discrimination based upon a supervisor’s perception that she is a lesbian. The
only actions she complains are discriminatory (as opposed to retaliatory) are that
Files told Baldwin that she “hated men,” was “dogged out” by her former husband,
and was a “dyke.” On face value, and when viewed in the context in which the
comments were made, they disparage plaintiff’s perceived sexual orientation, and
not her gender. When asked at deposition whether she had any evidence that she
was mistreated because she was female, as opposed to an alleged homosexual, she

17

answered that she did not. (Stevens Depo., Doc. 26-1, p. 88). Accordingly, the
defendant is entitled to summary adjudication of plaintiff’s Title VII claim of
gender discrimination, and Count One is due to be dismissed.
The Title VII discrimination claim also is due to be dismissed because, even
if the conduct complained of could be construed as gender or sex discrimination, it
was neither so severe nor so pervasive as to meet the governing standards. To
sustain a claim of a hostile environment, the workplace must be “permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275
(11th Cir. 2002). The court must examine “(1) the frequency of the conduct; (2)
the severity of the conduct; (3) whether the conduct is physically threatening or
humiliating, or a mere offensive utterance; and (4) whether the conduct
unreasonably interferes with the employee's job performance.” Mendoza v.
Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999) (en banc).
Stevens does not allege that her conditions of employment were altered,
except to say that she and Files did not converse after that except as necessary for
work and in a professional manner. None of the conduct alleged was physically
threatening. Even if the conduct was gender-based (and this court finds it was
not), it was more analogous to the occasional racial slur or ethnic epithet which

18

have been the basis of many race or national origin complaints ultimately found
insufficient to withstand summary judgment.

See, e.g., E.E.O.C. v. Beverage

Canners, Inc., 897 F.2d 1067, 1068 (11th Cir. 1990) (holding that for racial slurs to
constitute a hostile environment, they must be “commonplace, overt and
denigrating” such that they create “an atmosphere charged with racial hostility”);
Van Portfliet v. H & R Block Mortgage Corp., 290 Fed. App’x 301, 304 (11th Cir.
2008). It has been noted that Title VII may not be used as a tool to punish “the
ordinary tribulations of the workplace,” Faragher v. City of Boca Raton, 524 U.S.
775, 788, 118 S. Ct. 2275, 2284 (1998), or failure to treat an employee with
“sensitivity, tact and delicacy,” Minor v. Ivy Tech State College, 174 F.3d 855,
858 (7th Cir. 1999). Stevens’ discrimination complaint rests on a “mere offensive
utterance,” that was not gender-based, and that was not repeated. Her conditions
of employment were not altered, and the work environment remained essentially
the same. As the comment by Files was a “one time thing,” it was not a frequent
occurrence.12 In sum, plaintiff cannot show that the alleged harassment by Files
was sufficiently severe or pervasive to support a claim under of hostile work
environment under Title VII.

The other comments allegedly made by Files were about “kids and punks”
and “sissies,” which -- even if derogatory to gay people -- were occasional and not
directed toward Stevens.
12

19

Citing the unpublished case of Lewis v. U.S. Dep't of Labor, Admin. Review
Bd., 368 F. App'x 20 (11th Cir. 2010), the Department of Corrections13 also argues
that it is entitled to dismissal of plaintiff’s Title VII hostile environment claim
under the Faragher defense. See Faragher v. City of Boca Raton, 524 U.S. 775,
118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998), and Burlington Industries, Inc. v.
Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998). Under Faragher,
an employer is not liable for a hostile work environment if the employer takes
reasonable steps to prevent and correct harassing behavior and the employee
unreasonably fails to take advantage of the employer’s corrective procedures. The
defense is unavailable where the plaintiff has suffered a tangible adverse
employment action, such as being fired, suspended, or demoted. 14 In this case,
however, the plaintiff did not suffer any tangible adverse employment action. The
Of course, for purposes of a Title VII claim, the only proper defendant is
the Alabama Department of Corrections (or the State of Alabama). Actions under
Title VII lie only against the plaintiff’s “employer,” not against co-employees or
supervisors. See Busby v. City of Orlando, 931 F.2d 764 (11th Cir. 1991). Thus,
insofar as plaintiff attempts to assert either a Title VII hostile-work-environment
claim or a Title VII retaliation claim against Files, Sellers, Culliver, or Thomas,
these defendants are due to be dismissed on that basis.
13

The defendants assert that Files should not be considered a supervisor
under prevailing law. It is true that for Title VII purposes a “supervisor” must be
someone who has the ability to affect the terms and conditions of the plaintiff’s
employment, not merely someone who oversees the plaintiff’s work. For purposes
of this motion, the court assumes, without deciding, that Files was plaintiff’s
supervisor. There is evidence that Files conducted employment evaluations of the
plaintiff, which suggests he could affect the terms and conditions of her
employment.
14

20

Supreme Court has defined a tangible employment action as one involving, in most
cases, “direct economic harm.” Ellerth, 524 U.S. at 762. It further is undisputed
that Stevens did not suffer any decrease in pay or loss of any economic
opportunity. 15
It is generally said that the Faragher/Ellerth defense requires the defendant
employer to prove both elements: (1) that the employer took reasonable steps to
prevent and correct harassing behavior, and (2) that the employee unreasonably
failed to take advantage of the employer’s corrective procedures.

See, e.g.,

Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, 1303 (11th Cir.2007)
(“Because it is an affirmative defense, the employer bears the burden of
establishing both of these elements.”); Frederick v. Sprint/United Mgmt. Co., 246
F.3d 1305, 1313 (11th Cir.2001); Speigner v. Shoal Creek Drummond Mine, 402
F. App'x 428, 431 (11th Cir. 2010). The Eleventh Circuit has declined to decide
whether the employer must prove both elements in “sudden sexual harassment”
cases in which neither the employee nor the employer can reasonably anticipate the
harassment, but to which both react reasonably by (for the employee) promptly
One of plaintiff’s complaints is that she did not receive recognition in the
ADOC newsletter when she won a marksmanship award. There is no evidence
that any defendant had control over what was published in the newsletter, or that
any defendant had knowledge of the award but failed to seek to have it included in
the newsletter, or, for that matter, that the award for “Top Gun of the Class” was
equivalent to the honor of “Top Gun of the Year.” Moreover, publication of the
award amounted to no more than publicity; it did not result in any promotion or
extra pay, or any other economic consequence.
15

21

reporting it and (for the employer) promptly correcting it. See Walton v. Johnson
& Johnson Services, Inc., 347 F.3d 1272, 1291 (11th Cir. 2003) (cataloguing the
arguments for and against application of the defense when both plaintiff and
employer act reasonably, but declining to “weigh in on this debate.”). It can be
argued, however, that when the employee promptly reports harassment and the
employer provides prompt and effective correction of the reported harassment, the
defense should shield the employer because it has done everything it can both to
prevent and correct illegal conduct by its subordinates. Certainly, as between two
reasonable parties put into conflict by the actions of another, it is understandable
that some courts hold that the plaintiff should not be deprived of a remedy. See
Greene v. Dalton, 164 F.3d 671, 674-75 (D.C.Cir.1999). On the other hand, if the
employer takes objectively reasonable corrective steps, what remedy remains? The
harassing behavior has been promptly and effectively stopped by the employer. 16

Indeed, it can be argued that not allowing the employer to claim the
defense under such circumstances creates an incentive for employers not to set up
preventative and correcting procedures, contrary to the policy of Title VII
encouraging them to prevent workplace sexual harassment. If the employer takes
prompt and effective corrective steps to stop harassment, but remains liable
anyway, the corrective steps do nothing more than constitute an admission by the
employer that harassment has occurred, which is used against it in subsequent
litigation. On the other hand, if the employer simply fails to set up procedures by
which employees can report harassment, the employer is exposed to no greater
liability and it does not suffer the use of an admission against it. Thus, the denial
of the Faragher defense to an employer who takes prompt, good faith, and effective
steps to stop and correct harassment tends to undermine the fundamental Title VII
policy of encouraging employers to provide harassment-free working
16

22

At bottom, the potential Title VII liability of the employer rests on its failure to
take reasonable steps to prevent workplace harassment. When it has fulfilled its
duty under Title VII, it should not be liable for conduct it could not reasonably
anticipate, which it tried to prevent, and which it disciplined promptly after it
occurred.
Nonetheless, the law in this circuit seems clear that the employer must prove
both prongs of the Faragher defense. In the instant case, it is quite clear that
plaintiff did not unreasonably fail to take advantage of the Department of
Corrections’ procedures for reporting harassment. Plaintiff filed a complaint about
Files’ comments the day after they occurred.

The fact that the defendant

conducted a prompt investigation and reprimanded Files mere days later, while
proving the first prong of the defense, cannot establish the second prong. In the
absence of proof of both elements of the defense, it is unavailing to the defendant.
Although the Department of Corrections cannot prevail on the Faragher
defense, for other additional reasons explained above, the defendants’ motion for
summary judgment on the Title VII discrimination claim is due to be granted. All
Title VII hostile work environment claims are due to be dismissed with prejudice.

environments. Allowing the defense encourages employers to promptly and
effectively correct harassing behavior when it is discovered, which is consistent
with the fundamental goal of Title VII to end workplace discrimination and
harassment.
23

B. RETALIATION CLAIMS
Defendant Department of Corrections also seeks summary adjudication of
plaintiff’s claim of retaliation in violation of Title VII. 17 Defendant asserts that
plaintiff is unable to offer evidence to meet the elements required to prove a prima
facie case of Title VII retaliation. Title VII’s anti-retaliation provision states:

It shall be an unlawful employment practice for an employer to
discriminate against any of his employees ... because he has opposed
any practice made an unlawful employment practice by this
subchapter....

42 U.S.C. § 2000e-3(a).
In order to survive a properly supported motion for summary judgment, the
plaintiff in a Title VII retaliation case must establish a prima facie case by
showing: (1) that she engaged in protected conduct and (2) suffered an adverse
employment action that was (3) causally connected to the protected expression.
Bolivar v. University of Georgia Survey and Research, slip op. No. 3:11-CV-24,
2012 WL 4928893 *8 (M.D. Ga. Oct. 16, 2012); Taylor v. Runyon, 175 F.3d 861,
868 (11th Cir. 1999).
The plaintiff has the obligation to show a causal connection by showing
“that the decision makers were aware of the protected activity and the protected
Again, the only proper defendant as to this claim is the Alabama
Department of Corrections, as plaintiff’s “employer.”
17

24

activity and the adverse action were not wholly unrelated.” Bass v. Board of
County Comm’rs., Orange County, 256 F.3d 1095, 1119 (11th Cir. 2001)
(overturned on other grounds). The causal link requirement is to be construed
broadly, and the Eleventh Circuit Court of Appeals has stated that “a plaintiff need
only show that the protected activity and the adverse action were not wholly
unrelated.” Brungart v. Bellsouth Telecommunications, Inc., 231 F.3d 791, 799
(11th Cir. 2000) (quoting Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1354
(11th Cir. 1999)). However, to meet even this low threshold of proof of causation,
the plaintiff must offer some evidence from which a jury could infer that the
protected activity caused the adverse employment action.
Not all actions that an employee does not like or did not want constitute
“adverse employment actions,” however.

The Supreme Court has noted that

retaliation may be premised on an act that is less harsh than one that sustains a
discrimination claim. In Burlington Northern and Santa Fe Railway. Co. v. White,
548 U.S. 53, 126 S. Ct. 2405, 2412-13, 165 L. Ed. 2d 345 (2006), the Court noted
that an actionable retaliatory act is not limited to one that “affects the terms and
conditions of employment.”

To constitute retaliation under Title VII, however,

the actions must be “materially adverse.” 126 S. Ct. at 2414. A “materially
adverse” action is one that a reasonable employee would have found substantial
enough that it “might well” dissuade him or her from making or supporting a

25

charge of discrimination. Id. See also Crawford v. Carroll, 529 F.3d 961, 974
(11th Cir. 2008).
The plaintiff asserts that ADOC retaliated against her by disciplining her for
a minor infraction that had not previously been enforced, for failing to properly
punish an inmate who used derogatory terms to describe the Plaintiff in violation
of the State of Alabama’s code of conduct for inmates, and by refusing to allow her
to transfer to another institution. (Complaint, Doc. 1, ¶ 44). The facts, however,
demonstrate that the discipline she complained of – improper counting – was
punished with only a verbal counseling, the least severe discipline available. She
does not dispute that she was guilty of improper counting. The discipline she
received for failing to report the inmate’s conduct – a suspension – was reduced by
one of the defendants to a written reprimand. Again, she does not dispute that she
did not report the conduct during the shift in which it occurred, which was against
ADOC policy.

And while Stevens was not allowed to transfer immediately,

ADOC’s ultimate offer to allow her to transfer was refused. While the court must
view the “totality of the alleged reprisals,” the court need only consider “those that
are truly adverse.” Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d
1227, 1234 (11th Cir. 2006), quoting Wideman v. Wal-Mart Stores, Inc., 141 F.3d
1453, 1456 (11th Cir. 1998). To the extent that she asserts that Files’ demeanor
changed after the complaint was filed, all of the evidence indicates that Files

26

simply became “all business,” and “strictly professional,” conduct that any
employer would desire and that Title VII is constructed to promote.
While she argues that other officers performed improper counts and were not
disciplined, she admits that she had miscounted before and since, without being
disciplined, and that there is a difference in a formal count and an informal count.
None of the disciplinary actions about which she complains has resulted in any
change in her employment, position, or pay. None of the discipline, except the
verbal counseling, was imposed by Files, or was shown to be related in any way to
her complaint. Moreover, none of the actions she asserts were retaliatory would
dissuade a reasonable person from pursuing a claim.

Accordingly, these

allegations do not rise to the level of an “adverse employment action.”
There is no dispute that Stevens engaged in protected activities by
complaining of Files’ statement, by seeking redress with the EEOC, and by filing
this lawsuit. What she has failed to show is any employment action that was
sufficiently adverse to set forth a viable claim. Additionally, she has failed to offer
any evidence that the “retaliatory act” was related to her complaint. She bears the
burden of proving a causal link between her protected activities and the alleged
retaliation, and while this is not a heavy burden, it must be based on more than
mere speculation. Except for two disciplinary infractions in April and July 2011,
for which there is no evidence that either involved Files, the other alleged instances

27

of retaliation occurred many months later, in January 2012 (reduced discipline for
Inmate Vernon Whitlock) and June 2012 (alleged denial of transfer). On April 1,
2011, Sgt. Jones gave plaintiff a “counseling session” related to an inmate
miscount. Although plaintiff’s affidavit states that Sgt. Jones was instructed to do
so by Files, there simply is no evidence of it. The counseling form (Plaintiff’s
Ex. U) is signed by Sgt. Jones and recites that she is the officer who received the
miscount by plaintiff. In July 2011, Warden Danford recommended a two-day
suspension of the plaintiff for failing to write a report of inmate misconduct before
leaving at the end of her shift. That recommendation was reduced to a reprimand
by Commissioner Thomas. Plaintiff does not dispute that she failed to write the
report, and there is no evidence from which a reasonable jury could infer that the
recommendation or the reprimand were in reprisal for plaintiff’s February
complaint against Files.
In sum, plaintiff has provided insufficient evidence from which a jury could
infer that the defendant’s articulated reasons for the imposition of discipline or
denial of a transfer request is not worthy of credence and that the real reasons were
retaliation. For this reason, defendant’s motion for summary judgment on the
retaliation claim is due to be granted.

28

C. CLAIMS ARISING UNDER § 1983
The plaintiff asserts that the discriminatory and retaliatory acts she alleges in
her Title VII claims also constitute acts by the defendants, acting under color of
state law, to deprive her of her constitutional rights.

(Complaint, doc. 1, ¶¶ 47-

55). She asserts in her brief that Files engaged in bad faith, willful and malicious
acts, and that defendants Danford, Culliver, and DeLoach acted in bad faith by
“refusing to investigate and assist Plaintiff” to obtain relief from sexual harassment
retaliation, and that Thomas, through “deliberate indifference,” failed to stop the
gender discrimination” that she alleges occurred. (Doc.1, ¶¶ 61-71).18
Defendants seek dismissal of the claim, and argue that §1983 is inapplicable,
as an equal protection claim, because the plaintiff has failed to show even the
elements of a discrimination claim. 19

Plaintiff addresses this claim in her

opposition to the motion for summary judgment by attempting to raise issues

Counts Three and Five of the Complaint state two different 1983 claims.
Count Three does not specify what constitutional right was infringed except that
there were “acts of discrimination.” Count Five alleges more specifically that
defendant Thomas had notice of the discipline given to plaintiff by Danford, and
“failed or refused to stop the gender discrimination that plaintiff suffered.” While
the court is somewhat baffled by the precise theories of recovery presented here,
both § 1983 claims clearly rest upon the premise that Stevens was subjected to
discrimination on account of her gender or sexual orientation. The court, however,
already has determined that these claims are without merit to warrant redress under
Title VII – even if Title VII included protection for homosexuals as a suspect class.
18

19

The Complaint makes no mention of any due process violation.
29

regarding allegations of improper conduct by prison authorities toward female
inmates at Julia Tutwiler Prison for Women. (Doc. 33, pp. 63-70). The court
refuses to take the giant leap urged by plaintiff – that allegations that prison
officials behaved horrendously against female inmates in one institution indicates
that other prison officials at another institution deprived this female employee of
some constitutional right that has never been articulated.
To the extent that the plaintiff seeks redress under § 1983 for gender
discrimination, the claims are analyzed under the same McDonnell-Douglas
framework employed supra, and thus, for the reasons already discussed above, she
is not entitled to any relief. To the extent that the plaintiff is asserting a relatively
novel claim that she was discriminated against on the basis of a mistaken
perception of her sexual orientation (she was believed to be homosexual when, in
fact, she is not), she has failed to demonstrate that the single instance of namecalling violated the Equal Protection Clause of the Fourteenth Amendment.20

While an Equal Protection Clause argument has been successful in a
sexual orientation case where the plaintiff had been fired because of her “gender
non-conformity,” the loss of employment was the type of economic damage that
could support a Section 1983 claim. See, e.g., Glenn v. Brumby, 663 F.3d 1312
(11th Cir. 2011)(finding a state employer liable where an employee, biologically a
male, was fired based on his Gender Indentification Disorder and the treatment,
which involved presenting himself as a woman). Brumby, however, dealt with a
plaintiff whose appearance and demeanor created an obvious gender nonconformity, and is nothing like the case here where Stevens asserts that she is not
homosexual, and where there are no allegations that she presented herself as a
male. Calling an employee a derogatory term that refers to a homosexual is not, in
20

30

Accordingly, the defendant’s motion for summary judgment on Counts Three and
Five also is due to be granted.

D. State-Law Claim
Plaintiff also asserts that Files invaded her privacy in violation of Alabama
law. Because all federal claims in this case are due to be dismissed, the court finds
that the remaining state-law claim is due to be dismissed without prejudice
pursuant to 28 U.S.C. § 1367(c)(3). The court of appeals has expressed the view
that, when all federal claims are dismissed prior to trial, the district ordinarily
should decline supplemental jurisdiction over state-law claims. See Raney v.
Allstate Ins. Co., 370 F.3d 1086, 1089 (11th Cir.2004) (“We have encouraged
district courts to dismiss any remaining state claims when, as here, the federal
claims have been dismissed prior to trial.”); Clark Memorials of Alabama Inc. v.
SCI Alabama Funeral Servs. LLC, 991 F. Supp. 2d 1151, 1169 (N.D. Ala. 2014).
Accordingly, the court declines to exercise jurisdiction over any state-law claim,
and the plaintiff may reassert that claim in state court.

itself, actionable under either Title VII or § 1983. See Equal Employment
Opportunity Comm’n v. McPherson Cos., Inc., 914 F. Supp. 2d 1234, 1243 (N.D.
Ala. 2012).
31

CONCLUSION
For all of the foregoing reasons, the defendants’ motion for summary
judgment is due to be granted and all of plaintiff’s federal claims are due to be
dismissed with prejudice. The remaining state claim for invasion of privacy will
be dismissed without prejudice. A separate order will be entered in accordance
with the findings set forth herein.
DATED the 18th day of March, 2015.

_______________________________

T. MICHAEL PUTNAM
UNITED STATES MAGISTRATE JUDGE

32