Pressley v. City of Anniston Alabama et al
MEMORANDUM OPINION AND ORDER FINDING AS MOOT 52 MOTION to Strike Portions of Declaration of Jennifer Pressley, GRANTING IN PART and DENYING IN PART 24 MOTION for Summary Judgment, GRANTING IN PART and DENYING IN PART 26 PARTIAL MOTION for Summary Judgment as set out herein. All paramour favoritism and all disparate treatment in job assignment claims are HEREBY DISMISSED WITH PREJUDICE. Further, the following Counts are HEREBY DISMISSED WITH PREJUDICE: Count I, Count II, Count V III (against the City), Count VIII (against Mr. Abernathy for gender-discrimination with retaliation remaining for trial), Count X, and Count XI. The Counts remaining in the action are Counts III, IV, V, VI, VII, VIII (claim for retaliation against Mr. Abernathy only), and IX. By separate order, the Court will set this case for a pretrial conference. Signed by Judge Virginia Emerson Hopkins on 9/7/2016. (JLC)
2016 Sep-07 PM 12:45
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CITY OF ANNISTON and DARYL
ABERNATHY, in his individual
) Case No.: 1:14-CV-1029-VEH
MEMORANDUM OPINION AND ORDER
INTRODUCTION AND PROCEDURAL HISTORY
Plaintiff Jennifer Pressley (“Ms. Pressley”) brings this job discrimination,
sexual harassment, and retaliation lawsuit against Defendants City of Anniston (the
“City”) and Daryl Abernathy (“Mr. Abernathy”), her former supervisor. (Doc. 1). Her
complaint contains a total of eleven counts–eight of which are federal claims and
three of which arise under state law. (See generally id.).
Ms. Pressley’s Federal Claims
Count I is a Title VII failure-to-hire on the basis of gender claim asserted
against the City. (Doc. 1 at 9). Count II is an equal protection-based failure-to-hire
on the basis of gender claim asserted against both the City and Mr. Abernathy
pursuant to 42 U.S.C. § 1983. (Doc. 1 at 10). Count III is a Title VII sexual
harassment claim asserted against the City. (Id. at 11). Count IV is an equal
protection-based sexual harassment claim asserted against both the City and Mr.
Abernathy pursuant to § 1983. (Id. at 14). Count V is a Title VII retaliatory
harassment claim asserted against the City. (Id. at 16). Count VI is a Title VII
retaliatory discharge claim asserted against the City. (Id. at 17). Count VII is a Title
VII retaliatory failure-to-rehire claim asserted against the City. (Id. at 19). Count VIII
is an equal protection-based retaliatory failure-to-rehire claim asserted against both
the City and Mr. Abernathy pursuant to § 1983. (Id. at 21).
Ms. Pressley’s State Law Claims
Count IX is a negligent training and supervision claim asserted against the
City. (Doc. 1 at 23). Count X is an invasion of privacy claim asserted against Mr.
Abernathy. (Id. at 24). Finally, Count XI is an outrage claim asserted against Mr.
Abernathy. (Id. at 25).
The three pending motions are: (i) Mr. Abernathy’s Motion for Summary
Judgment (Doc. 24) (“Mr. Abernathy’s Motion”) filed on January 14, 2016; (ii) the
City’s Partial Motion for Summary Judgment with attached evidence (Doc. 26) (the
“City’s Partial Motion”) also filed on January 14, 2016; and (iii) Mr. Abernathy’s
Motion To Strike Portions of Declaration of Jennifer Pressley (Doc. 52) (the “Strike
Motion”) filed on March 25, 2016. Defendants have filed evidence and briefs in
support of these motions. (Docs. 25, 27, 30-32).
Ms. Pressley opposed the City’s Motion on March 3, 2016 (Docs. 37, 38), and
filed a corrected brief on March 15, 2016. (Doc. 44). Ms. Pressley opposed Mr.
Abernathy’s Motion on March 15, 2016 (Doc. 40) and his Strike Motion on April 8,
2016. (Doc. 54). Finally, both Mr. Abernathy and the City filed reply briefs in support
of their respective motions. (Docs. 51, 53). For the reasons explained below the City’s
Partial Motion is GRANTED IN PART and DENIED IN PART. Mr. Abernathy’s
Motion is GRANTED IN PART and DENIED IN PART. Finally, Mr. Abernathy’s
Strike Motion is TERMED as MOOT.
Summary judgment is proper only when 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). All reasonable doubts about the facts and all justifiable inferences are resolved
in favor of the nonmovant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th
Cir. 1993). A dispute is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). “Once the moving party
has properly supported its motion for summary judgment, the burden shifts to the
nonmoving party to ‘come forward with specific facts showing that there is a genuine
issue for trial.’” International Stamp Art, Inc. v. U.S. Postal Service, 456 F.3d 1270,
1274 (11th Cir. 2006) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986)). Finally “[i]f the
movant bears the burden of proof on an issue, because, as a defendant, it is asserting
an affirmative defense, it must establish that there is no genuine issue of material fact
as to any element of that defense.” International Stamp, 456 F.3d at 1274 (citing
Martin v. Alamo Community College Dist., 353 F.3d 409, 412 (5th Cir. 2003)).
Employment Discrimination Generally
A plaintiff in an employment discrimination case maintains the ultimate burden
of proving that the adverse employment decision was made because of intentional
discrimination. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
143,120 S. Ct. 2097, 2106, 147 L. Ed. 2d 105 (2000) (“Although intermediate
evidentiary burdens shift back and forth under this framework, ‘[t]he ultimate burden
of persuading the trier of fact that the defendant intentionally discriminated against
the plaintiff remains at all times with the plaintiff.’” (quoting Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1093, 67 L. Ed.
2d 207 (1981))); Nix v. WLCY Radio/Rahall Comms., 738 F.2d 1181, 1184 (11th Cir.
1984) (“A Title VII disparate treatment plaintiff must prove that the defendant acted
with discriminatory purpose.” (citing Clark v. Huntsville City Board of Educ., 717
F.2d 525, 529 (11th Cir. 1983))).
The Supreme Court has established the basic allocation of burdens and order
of proof in a disparate treatment case, see, e.g., McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); Burdine, supra; Desert Palace
v. Costa, 539 U.S. 90, 123 S. Ct. 2148, 56 L. Ed. 2d 84 (2003); that framework
applies in cases in which such as this there is no direct evidence of discrimination.1
See Grigsby v. Reynolds Metals Co., 821 F.2d 590, 595 (11th Cir. 1987) (“The
McDonnell Douglas-Burdine patterns of proof were designed to ease the evidentiary
burdens on employment discrimin[a]tion plaintiffs, who rarely are fortunate enough
to have access to direct evidence of intentional discrimination.” (citing Thornbrough
v. Columbus and Greenville R.R., 760 F.2d 633, 638 (5th Cir. 1985), abrogated on
As the Eleventh Circuit has explained, “only the most blatant remarks, whose
intent could be nothing other than to discriminate on the basis of age, . . . constitute
direct evidence of discrimination.” Carter v. City of Miami, 870 F.2d 578, 582 (11th
Cir. 1989) (citing Barnes v. Southwest Forest Industries, Inc., 814 F.2d 607, 610-11
(11th Cir. 1987)). In opposing summary judgment, Ms. Pressley does not contend that
direct evidence of gender discrimination or retaliation exists in this case.
other grounds by St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742,
125 L. Ed. 2d 40 (1993)).
Under the McDonnell Douglas/Burdine circumstantial evidence scheme, a
plaintiff first has the burden of proving by a preponderance of evidence a prima facie
case of discrimination. The burden of production then shifts to the defendant to
articulate a legitimate, nondiscriminatory reason for its employment decision. If the
defendant does so, the plaintiff must either prove by a preponderance of the evidence
that the legitimate reasons offered by the defendant are merely a pretext for
discrimination or present sufficient evidence, of any type, for a reasonable jury to
conclude that discrimination was a “motivating factor” for the employment action,
even though the defendant’s legitimate reason may also be true or have played some
role in the decision. McDonnell Douglas, 411 U.S. at 802-05, 93 S. Ct. at 1824-26;
Burdine, 450 U.S. at 252-54, 101 S. Ct. at 1093-94; Desert Palace, 539 U.S. at 10102, 123 S. Ct. at 2155.
“All evidentiary decisions are reviewed under an abuse-of-discretion standard.”
See, e.g., General Elec. Co. v. Joiner, 522 U.S. 136, 141, 118 S. Ct. 512, 517, 139 L.
Ed. 2d. 508 (1997). “An abuse of discretion can occur where the district court applies
the wrong law, follows the wrong procedure, bases its decision on clearly erroneous
facts, or commits a clear error in judgment.” United States v. Estelan, 156 F. App’x
185, 196 (11th Cir. 2005) (citing United States v. Brown, 415 F.3d 1257, 1266 (11th
Moreover, as the Eleventh Circuit has made clear, not every incorrect
evidentiary ruling constitutes reversible error:
Auto-Owners’ second argument is that it is entitled to a new trial
on the basis of what it describes as a number of erroneous evidentiary
rulings by the district court. Evidentiary rulings are also reviewed under
an abuse of discretion standard. Finch v. City of Vernon, 877 F.2d 1497,
1504 (11th Cir. 1989). Moreover, even if Auto-Owners can show that
certain errors were committed, the errors must have affected “substantial
rights” in order to provide the basis for a new trial. See FED. R. EVID.
103(a). “Error in the admission or exclusion of evidence is harmless if
it does not affect the substantial rights of the parties.” Perry, 734 F.2d
at 1446. See also Allstate Insurance Co. v. James, 845 F.2d 315, 319
(11th Cir. 1988).
Haygood v. Auto-Owners Ins. Co., 995 F.2d 1512, 1515 (11th Cir. 1993). Therefore,
even the existence of many evidentiary errors does not guarantee an appealing party
relief from an adverse final judgment. Instead, such erroneous rulings by a district
court must “affect the substantial rights of the parties” in order for reversible error to
STATEMENT OF FACTS2
Mr. Abernathy has worked for the City since 1998 and, during the time period
relevant to this lawsuit, served as the assistant street superintendent for the City’s
Public Works Department (the “Department”). (AF No. 1).3 Mr. Abernathy reports
This statement does not represent actual findings of fact. See In re Celotex
Corp., 487 F.3d 1320, 1328 (11th Cir. 2007) (observing that “a summary judgment
proceeding . . . by definition involves no findings of fact . . . .”). Instead, the court has
provided this statement simply to place the court’s legal analysis in the context of this
particular case or controversy.
The designation “AF” stands for admitted fact and indicates a fact offered by
the moving party that Ms. Pressley has admitted in her written submissions on
summary judgment, in her deposition testimony, or by virtue of any other evidence
offered in support of her case. Under Appendix II of the court’s uniform initial order
(Doc. 3) entered on June 2, 2014, “[a]ll statements of fact must be supported by
specific reference to evidentiary submissions.” (Id. at 16). Further, this means that
“[a]ny statements of fact that are disputed by the non-moving party must be followed
by a specific reference to those portions of the evidentiary record upon which the
dispute is based.” (Id. at 17). Consequently, whenever Ms. Pressley has inadequately
asserted a dispute over a fact that the moving party has otherwise substantiated with
an evidentiary citation, the court has reviewed the cited evidence and, if it in fact
fairly supports the factual assertion made by the moving party, has accepted that fact.
On the other hand, whenever Ms. Pressley has adequately disputed a fact offered by
the moving party, the court has reviewed the evidence cited by Ms. Pressley and, if
it in fact fairly supports Ms. Pressley’s factual assertion, has accepted Ms. Pressley’s
version. The court’s numbering of admitted facts (e.g., AF No. 1) corresponds to the
numbering of Mr. Abernathy’s undisputed statement of facts as set forth in Doc. 27
and responded to by Ms. Pressley in Doc. 40. A number following a decimal point
corresponds to the particular sentence within the numbered statement of facts. For
example, (AF No. 5.1) would indicate the first sentence of paragraph number 5 of Mr.
Abernathy’s statement of facts is the subject of the court’s citation to the record.
directly to the public works director, Bob Dean (“Mr. Dean”), who, in turn, reports
to the city manager, now Brian Johnson (“Mr. Johnson”), but who previously was
Don Hoyt (“Mr. Hoyt”). (AF No. 2). Mr. Abernathy has four subordinates who report
directly to him and who are first-level supervisors over the laborers in the
Department: Danny Bussey (“Mr. Bussey”), John Duncan (“Mr. Duncan”), Tony Hill
(“Mr. Hill”), and Joe McCarson (“Mr. McCarson”). (AF No. 3).
While laborers in the Department are generally assigned to one of the four
supervisors, they can be shifted to another when necessary, according to the
manpower needs of the Department on a daily basis. (AF No. 4). Ms. Pressley was
hired as a temporary employee (or laborer) for the Department in May 2012. That
seasonal employment ended six months later on or about October 11, 2012, when she
was laid off.4
Bersheba Austin (“Ms. Austin”), the City’s human resources director, served
as its Rule 30(b)(6) representative. Based upon Ms. Austin’s affirmative responses
to questions about the City’s EEOC investigative file, Ms. Pressley and five other
temporary male workers were laid off, on October 11, 2012. (Doc. 30-1 at 3 at 8; id.
The City’s correspondence to the EEOC dated November 29, 2012, indicates
that Ms. Pressley’s seasonal employment began on May 9, 2012, and ended on
October 18, 2012. (Doc. 54-1 at 1).
at 9 at 30).5 Prior to October 11, 2012, Danielle McCurry (“Ms. McCurry”),who was
the only other female seasonal employee, began permanent status on October 5, 2012.
(Doc. 30-1 at 9 at 30). One seasonal worker–Mr. Langston–was retained during the
October 2012 seasonal layoff and later obtained permanent employment due to a
vacancy. (Doc. 30-1 at 45 at 174).
The City contends in its brief that “[n]one of the temporary employees that
were part of the seasonal layoff in mid-October were hired as permanent employees.”
(Doc. 31 at 7 ¶ 30). However according to the contents of its own investigative file,
four temporary laborers were subsequently called to return to work on October 29,
2012. (Doc. 30-1 at 9 at 30). Besides Ms. Pressley, only one other person from the
group of six temporary employees who were laid off–Mr. Davis–did not come back
to work for the City and that was because he quit. (Doc. 30-1 at 9 at 31-32).
Ms. Pressley’s Complaints of Sexual Harassment and Other
Misconduct by Mr. Abernathy
While Mr. Abernathy denies engaging in any inappropriate sexually-related
conduct (PF No. 13),6 several employees witnessed Mr. Abernathy viewing nude
Any first page references to Doc. 30-1 correspond with the court’s CM/ECF
“PF” stands for a proposed fact offered by Mr. Abernathy that Ms. Pressley
has adequately disputed.
photos of Ms. McCurry, demanding to see nude photographs of Ms. Pressley, and
asking Ms. Pressley to show him her breasts and tattoos. (Doc. 40 at 4 ¶ 13).7
Similarly, although Mr. Abernathy denies having an improper relationship with Ms.
McCurry (PF No. 14), several witnesses have testified that they saw him engage in
sexually explicit conversations and gestures with her. (Doc. 40 at 4 ¶ 14).
More specifically, regarding Mr. Abernathy’s treatment of Ms. Pressley, she
claims that, weeks after she began as a temporary employee in the Department, Mr.
Abernathy asked to see her tattoos. (AF No. 16). Mr. Abernathy indicated that he had
heard Ms. Pressley had them all over her and he wanted to see them all even though
most of them were covered up by her clothing. (AF No. 16). Ms. Pressley did not
know how Mr. Abernathy knew about her tattoos. (AF No. 17). There had not been
any prior discussion about them leading up to his remarks. (AF No. 17). Ms. Pressley
testified that a few City employees were present when this happened, but she did not
remember who. (AF No. 18). Ms. Pressley told Mr. Abernathy he would never see
any more, and he “just kind of laughed.” (AF No. 18). Ms. Pressley testified that he
asked her this tattoo question daily and knows that some of the other employees heard
him, as he said it numerous times, but she did not know of anyone specifically. (AF
Any page references to Doc. 40 correspond with the court’s CM/ECF
Nos. 18, 19).
Ms. Pressley also testified that Mr. Abernathy asked her to let him see pictures
and nude pictures of her. (AF No. 20). On the first occasion Mr. Abernathy asked
about nude pictures, it was “out of the blue” without any lead in or related group
discussion. (AF No. 21). She answered that he would never see a picture of her naked,
and Mr. Abernathy did not really respond to her. (AF No. 21). Ms. Pressley indicated
that Mr. Abernathy asked her about nude photos of herself again on numerous times.
(AF No. 22). Ms. Pressley said that Mr. Abernathy’s requests for nude photos had
been heard by a number of employees but that she could not recall all the persons or
the number of occasions. (AF No. 23). As Arthur Davis (“Mr. Davis”) who worked
as driver in the Department covering the period of May 2012 to September 2012
(Doc. 37-2 at 1 ¶ 2) stated in his declaration, “Just about every time I was near
Pressley and Abernathy together at the same time, which was almost daily, I heard
Abernathy tell Pressley to show him her breasts, naked body, nude photos or tattoos.”
(Doc. 37-2 at 1-2 ¶ 3).
Ms. Pressley also remembered a time when the crew was near the bowling
alley, and Mr. Abernathy pulled her aside alone and asked her if she were going to
show him any nude pictures and did she have any nude pictures for him? (AF No. 24).
She did not know why Mr. Abernathy would think that she had nude photos of
herself. (AF No. 24). She did testify that he did this “constantly, daily.” (AF No. 24).
Ms. Pressley testified that another employee, Ms. McCurry, was showing
pictures of herself on her cell phone and Ms. Pressley could see that at least one of
the pictures was of Ms. McCurry nude. (AF No. 25). Mr. Abernathy and several other
employees were there when this happened. (AF No. 26); (Doc. 26-1 at 27 at 104).8
On another occasion, Ms. McCurry was showing nude pictures of herself to
employees when the crew was working over at the graveyard. (AF No. 27) Ms.
Pressley recalled numerous employees were present. (AF No. 27). On this same day,
Ms. McCurry was not only showing pictures of herself, but also was “pull[ing] her
shirt out and . . . showing her boobs.” (AF No. 28). Ms. Pressley further testified that
Mr. Abernathy “looked at [her] and was like, well, now it’s your turn, and [she] said,
well no.” (AF No. 28). Several other employees were present during this exchange.
(AF No. 28).
On another instance during lunch next to the Sonic Drive-In, Ms. Pressley
recalled that Ms. McCurry showed a nude picture to Mr. Abernathy after he had
brought lunch boxes to her and Ms. McCurry. (AF No. 29). Mr. Abernathy then said,
“now you owe me.” (AF No. 29). Ms. McCurry started to show Mr. Abernathy more
Any first page references to Doc. 26-1 correspond with the court’s CM/ECF
pictures, but Ms. Pressley could not see whether the image was a nude body or not.
(AF No. 29).
On this particular occasion, Ms. Pressley took Mr. Abernathy’s “you owe me”
comment to mean he was talking about nude photos because he had asked for them
so many times. (AF No. 30). “It was like in a conversation: you owe me. And, oh,
y’all got them nude photos yet? You know, just every day.” (AF No. 30).
One other time, Ms. Pressley testified they were “at the barn” and Mr.
Abernathy asked her a “perverted question” like “does the carpet match the drapes.”
(AF No. 31). Ms. Pressley indicated that this means whether pubic hairs match the
hair on the head. (AF No. 31). This was an out-of-the-blue comment and Ms. Pressley
knew of no reason why he might ask such a thing. (AF No. 31).
During her deposition, Ms. Pressley could not remember any other specific
examples in which Mr. Abernathy made improper remarks to her or in her presence.
(AF No. 32). However, Ms. Pressley stated that there were plenty of other times and
that it was constant. (AF No. 32).
Ms. Pressley complained to Mr. Bussey about Mr. Abernathy’s behavior in
August 2012. (Doc. 25-4 at 113). More specifically, Ms. Pressley spoke to Mr.
Bussey after the graveyard incident and:
[T]old him what had happened and that it was constant -- like I needed
my job but I wasn't going to do that for my job and that -- I mean, it was
every single day, that it had to stop. And he told me that I would have
to take it up with my supervisor, which was Daryl [Abernathy].
(Doc. 25-4 at 113).9
Ms. Pressley further testified that, after Mr. Abernathy asked her to show him
her breasts in September 2012, she told him that “it had to stop.” (AF No. 33). Shortly
thereafter, she was called into Mr. Abernathy’s office with all of the supervisors. (AF
No. 34). Mr. Abernathy said he was the boss and he could do whatever he wanted to
do. (AF No. 34). Not long after that, Ms. Pressley was laid off in October 2012, along
with several other seasonal workers. (AF No. 34).
Mr. Abernathy’s Supervision of Ms. Pressley
Mr. Abernathy recalls having two meetings with Ms. Pressley that are relevant
to her claims in this lawsuit. (AF No. 5.1). Mr. Abernathy testified that the first
meeting occurred after Ms. Pressley came to him and said, “Do not move Danielle
[i.e., Ms. McCurry] off of another job anymore or I’ll handle it.” (PF No. 5.2). Ms.
Pressley additionally told Mr. Abernathy that if he “moved Danielle anywhere else,
Citing to Doc. 37-3, Ms. Pressley indicates in her brief that Mr. Bussey
confirmed that she complained to him about Mr. Abernathy’s harassing actions. (Doc.
44 at 19 n.4). The court has checked Doc. 37-3 on CM/ECF and it is a duplicate filing
of Mr. Davis’s declaration (Doc. 37-2) and not a copy of Mr. Bussey’s deposition
transcript. The courtesy copy of Ms. Pressley’s evidence that she provided to the
court contains the same error. The court has been unable to locate this evidence.
took her off of a job, then she would handle the situation herself.” (PF No. 5.3). Ms.
Pressley denies making either one of these statements to Mr. Abernathy. (Doc. 37-1
at 1 ¶ 2).
Mr. Abernathy testified that he gathered his foremen and met with Ms. Pressley
because of her attitude and because it had been brought to his attention that she was
moving around from foreman to foreman so that she could work with one particular
employee. (AF No. 5.4). Mr. Abernathy counseled Ms. Pressley regarding going to
a supervisor and getting herself changed after she had been given work to do by
another foreman. (AF No. 5.5). Mr. Abernathy further spoke to her about refraining
from “running her mouth and doubting [his] authority.” (AF No. 5.5).
Mr. Abernathy indicated in his deposition that, while typically a temporary
employee would be “let go” due to such conduct, an exception was made for Ms.
Pressley because she had been on time, was always present, and as reported by the
foremen was otherwise a good employee. (AF No. 6.1). Mr. Abernathy testified that
he gave Ms. Pressley “three months of probation” before he would consider her for
a permanent position, knowing that she would be laid off (as a temporary worker) and
that when she came back to work in January 2013 (as most temporary employees
would do), her probationary period would be over. (Doc. 25-1 at 113-14). Ms.
Pressley disputes that she was ever placed on probation by Mr. Abernathy or anyone
else working for the City. (Doc. 37-1 at 1-2 ¶ 3).
A September 18, 2012, “Public Works Department Memo” signed by Mr.
Abernathy memorializes his meeting with Ms. Pressley (and others) and confirms her
being placed on probationary status. While that memo has been filed into the record
(Doc. 32-1 at 1), Ms. Pressley challenges its authenticity. More specifically, she
points out that the document was not utilized during the EEOC proceedings (Docs.
54-1, 54-2), mentioned in response to Ms. Pressley’s complaint (Docs. 7, 8), or
provided as part of Defendants’ initial disclosures that included her personnel file.
(Docs. 54-3, 54-4); (see also Doc. 54 at 4). The record was eventually produced to
Ms. Pressley on May 1, 2015 (Doc. 54 at 4), without an explanation as to why it was
not part of the City’s initial disclosures that were served on November 20, 2014. (See,
e.g., Doc. 30-1 at 26 at 98-99 (answering “No, sir” when questioned if the City had
any explanation for not including this probationary record as part of its initial
In their second meeting, with Mr. Duncan present, Ms. Pressley had questions
about obtaining full-time employment. (AF No. 7). During this meeting, Mr.
Abernathy gave Ms. Pressley the permanent-hiring paperwork for her to fill out and
return. (AF No. 8). Ms. Pressley indicated in her deposition that “to the best of her
memory” she turned her permanent paperwork into Mr. Abernathy before being laid
off in October 2012. (Doc. 26-1 at 39 at 150-51); (see also AF No. 35 (“[Ms.
Pressley] filled out paperwork and an application for the purpose of being a
permanent employee, those having been handed out to her, and she says she turned
the papers into Abernathy.”)). Ms. Pressley also testified that, before her temporary
position ended, Mr. Abernathy told her that she had a permanent job, but she did not
know exactly when that permanent position was scheduled to start. (Doc. 26-1 at 60
The City never hired Ms. Pressley as a permanent employee. (Doc. 26-1 at 40
at 156). Ms. Pressley testified that she did not know who had gotten hired when and
who did not; only that she had not. (Doc. 26-1 at 40 at 155-56). When asked during
her deposition if she ever spoke to someone at the City about her paperwork that she
had turned into Mr. Abernathy, Ms. Pressley testified, “Not about that because I was
assuming that I was getting hired.” (Doc. 26-1 at 40 at 156).
Ms. Pressley’s EEOC Filings and other Events Occurring
after her temporary Employment Ended
Ms. Pressley filed an EEOC charge on October 19, 2012.10 The City received
Ms. Pressley’s EEOC charge on November 5, 2012. (Doc. 30-1 at 3 at 8); (see also
The court has been unable to determine if or where Ms. Pressley’s initial or
amended EEOC charges have been filed into the record and has pulled the following
administrative facts from the City’s responses to those charges that are part of the
summary judgment record.
Doc. 54-1 at 2 (“The city learned of her grievance from the EEOC notice we received
on November 5th.”)). This initial charge complained that “she was reprimanded and
laid off in retaliation for complaining of sexual harassment . . . .” (Doc. 54-2 at 2).
Ms. Austin testified that she received an email from the City’s payroll clerk on
November 8, 2012, indicating that Mr. Abernathy had dropped off a new employee
packet for Ms. Pressley who was supposed to start working in January 2013. (Doc.
26-3 at 54 at 209, 210).11 When Ms. Austin later asked Mr. Abernathy about this
paperwork, he told her that it had been on his desk and that he had decided to bring
it to her. (Doc. 26-3 at 55 at 213). Ms. Austin testified that the delay (or gap in time)
between Mr. Abernathy’s submitting Ms. Pressley’s paperwork and her anticipated
hiring date in January was unusual based upon her experience. (Id. at 214).
On January 3, 2013, Ms. Pressley filed an amended EEOC charge that
complained about not being “called to return back to work” and “allege[d] that her
layoff as an employee . . . was discriminatory and done in retaliation for her having
made complaints about sexual harassment and a hostile work environment . . . .”
(Doc. 54-2 at 2). Ms. Austin was asked during her deposition if she knew who made
the decision not to hire Ms. Pressley. (Doc. 26-3 at 34 at 131). She answered, “No,
Any first page references to Doc. 26-3 correspond with the court’s CM/ECF
I don’t know who made - - I don’t know why she wasn’t hired.” (Doc. 26-3 at 34 at
When asked during his deposition if the only reason Ms. Pressley did not
become a permanent employee was because she did not personally come into his
office with her paperwork, Mr. Abernathy answered, “She didn’t follow procedure,
so yes, sir.” (Doc. 26-2 at 54 at 210, 211).12 At another part of his deposition, Mr.
Abernathy indicated that Ms. Pressley had been told during the second meeting he
and Mr. Duncan had with her before her layoff that she was supposed to show up with
her paperwork on January 3, 2013, to be hired. (Doc. 26-2 at 53 at 206). In contrast,
Ms. Pressley testified that Mr. Abernathy told her that she had a permanent job when
he gave her the paperwork. (Doc. 26-1 at 60 at 234). The City’s statement of position
to the EEOC dated February 18, 2013, indicates that Ms. Pressley was not called to
return to work because she “was insubordinate, had posted negative remarks about
the Respondent and some of its employees through social media outlets, and
otherwise created concerns by Respondent as to her ability to perform her assigned
tasks since the allegations made in her original charge of discrimination could not be
corroborated at this time by Respondent.” (Doc. 54-2 at 3). Ms. Pressley filed her
Any first page references to Doc. 26-2 correspond with the court’s CM/ECF
complaint against the City and Mr. Abernathy on May 30, 2014. (Doc. 1).
The City’s Partial Motion
Counts I-IX of Ms. Pressley’s complaint are either asserted against the City
exclusively or against both the City and Mr. Abernathy. In its brief, the City
acknowledges that “factual disputes preclude summary judgment on some claims.”
(Doc. 31 at 8). The City expressly identifies Ms. Pressley’s Title VII retaliation claim
(asserted in Count VII) that she was not permanently hired because she complained
about Mr. Abernathy’s sexually-charged comments when she was a temporary
employee as one in which summary judgment is not appropriate. (Doc. 31 at 14).
Without identifying the corresponding Counts, the City specifically seeks
summary judgment on: (i) Ms. Pressley’s Title VII sexual harassment claims (Doc.
31 at 8); (ii) her Title VII gender discrimination claims (id. at 11); (iii) her Title VII
retaliation claim premised upon being discharged and/or not being permanently hired
because she complained about Mr. Abernathy’s favorable treatment of Ms. McCurry
(id. at 14); (iv) her § 1983 claims (id. at 16); and her negligent training and
supervision claim. (Id. at18).
In her opposition, Ms. Pressley points out that she is not pursuing a harassment
claim or a retaliation claim based on paramour favoritism. (Doc. 44 at 15, 28-29).13
Thus, those portions of the City’s Partial Motion are GRANTED as abandoned. See
collection of cases cited infra at 26-27. The court addresses the contested portions
Ms. Pressley’s Title VII Sexual Harassment Claim
against the City
A Title VII sexual harassment claim that is premised upon a hostile working
environment created by a supervisor requires prima facie proof from a plaintiff:
(1) that he or she belongs to a protected group; (2) that the employee has
been subject to unwelcome sexual harassment, such as sexual advances,
requests for sexual favors, and other conduct of a sexual nature; (3) that
the harassment must have been based on the sex of the employee; (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. Henson, 682 F.2d at 903–05.
Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999).
With respect to evaluating the fourth element:
[T]he Supreme Court and this Court have identified the following four
factors that should be considered in determining whether harassment
objectively altered an employee’s terms or conditions of employment:
(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
Any page references to Doc. 44 correspond with the court’s CM/ECF
with the employee’s job performance. Allen v. Tyson Foods, 121 F.3d
642, 647 (11th Cir. 1997) (citing Harris, 510 U.S. at 23, 114 S. Ct. 367).
The courts should examine the conduct in context, not as isolated acts,
and determine under the totality of the circumstances whether the
harassing conduct is sufficiently severe or pervasive to alter the terms
or conditions of the plaintiff's employment and create a hostile or
abusive working environment. Id.; see Harris, 510 U.S. at 23, 114 S. Ct.
367; Henson, 682 F.2d at 904; Faragher, 118 S. Ct. at 2283 (citing
Harris, 510 U.S. at 23, 114 S. Ct. 367, and explaining that “[w]e
directed courts to determine whether an environment is sufficiently
hostile or abusive by ‘looking at all the circumstances’”).
Mendoza, 195 F.3d at 1246. Concerning the fifth element, “an employer may be
vicariously liable for actionable hostile environment discrimination caused by a
supervisor with immediate (or successively higher) authority over the
employee—subject to an affirmative defense.” Mendoza, 195 F.3d at 1245 n.4 (citing
Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93, 141 L. Ed.
2d 662 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257,
2270, 141 L. Ed. 2d 633 (1998)).
Here, the severe or pervasive prong–the fourth element–is the only one that the
City challenges on summary judgment. (Doc. 31 at 9). However, that effort is halfheartedly presented in its opening brief by way of a bare-bones four-sentence
paragraph that lacks reference to any persuasive, much less binding, precedent. (Doc.
31 at 9-10). As the City urges, in a blanket fashion, “even if the jury believed Plaintiff
and assumed that Abernathy asked to see Plaintiff’s tattoos and/or nude photos, such
alleged instances were not sufficiently severe or pervasive to alter the terms and
conditions of Plaintiff’s employment.” (Doc. 31 at 9). The City also contends that no
“reasonably minded jurors [could] conclude that such alleged instances created an
abusive working environment” and then unhelpfully adopts the facts and legal
arguments made by Mr. Abernathy without specifying which ones are critical to the
court’s evaluation of this particular claim. (Id. at 9-10).
In doing so, the City minimizes the factual substance of what Ms. Pressley has
testified that Mr. Abernathy did to her over a six-month period and pretends that, at
most, Mr. Abernathy sporadically made only a few sexually-offensive statements
directed towards her. Instead, Ms. Pressley’s sexual harassment claim is premised
upon Mr. Abernathy’s repeated, numerous, and daily requests for her to show him her
tattoos14 and her nude photos. Additionally, on at least one occasion, Mr. Abernathy
pressured her to show him her breasts and in another instance asked her, “Does the
carpet match the drapes?” These sexually-demeaning incidents often occurred in front
The court notes that asking to see someone’s tattoos is not straightforwardly
sexual in nature even if the tattoos are covered up by that person’s clothes–such as
one located on an ankle or a shoulder. However, for the purposes of summary
judgment and reading the record in the light most favorable to Ms. Pressley, Mr.
Abernathy’s questions about Ms. Pressley’s tattoos “might implicate sex
discrimination,” especially given his indication that he had heard she had them all
over her body. Mendoza, 195 F.3d at 1248. Alternatively, even without factoring in
Mr. Abernathy’s inquiries about Ms. Pressley’s tattoos, the court finds that Ms.
Pressley’s evidence is sufficient to create a triable issue of sexual harassment.
of other employees. All of these acts occurred over a relatively short period of time
and, based upon her testimony, a reasonable jury could infer that Ms. Pressley
endured some type of sexually-charged comment, question, or demand for a sexual
favor by Mr. Abernathy at least once a week, if not more frequently than that. See,
e.g., Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 808 (11th Cir. 2010)
(“Either severity or pervasiveness is sufficient to establish a violation of Title VII.”
(emphasis in Reeves) (citing Ellerth, 524 U.S. at 743, 118 S. Ct. at 2260)); Reeves,
594 F.3d at 803, 804 (noting as an underlying “essential fact” testimony from the
plaintiff substantiating that sexually-offensive conduct occurred in the workplace
“‘on a daily basis’”).
Further, the record, taken in a light most favorable to Ms. Pressley,
substantiates that she did not welcome Mr. Abernathy’s advances, that she rejected
doing any of the sexually-charged acts that he was asking of her, that she was
subjectively bothered by and complained to Mr. Bussey about Mr. Abernathy’s
objectionable conduct, that, despite her complaint, Mr. Abernathy’s behavior
continued, and that she demanded that Mr. Abernathy stop. Thus, the hostile work
environment part of the City’s Partial Motion is DENIED as underdeveloped,
factually incomplete, and unpersuasive.15 The City’s Partial Motion is further
DENIED for those reasons, discussed infra, explaining why Mr. Abernathy is not
entitled to summary judgment on Ms. Pressley’s corresponding § 1983 sexual
Ms. Pressley’s Title VII Gender Discrimination
Claim(s) against the City
The City treats Ms. Pressley’s complaint as containing two distinct gender
discrimination claims within Count I–one for being assigned worse jobs during her
temporary employment period with the Department than men and the second for not
being permanently hired because of her gender. (Doc. 31 at 12). Ms. Pressley makes
no effort to support the merits of the first purported claim and, to the extent it has
even been raised in her complaint, it is due to be dismissed as unopposed and/or
abandoned by her. See, e.g., Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322 (11th
Cir. 2001) (finding claim abandoned when argument not presented in initial response
to motion for summary judgment); Bute v. Schuller Int’l, Inc., 998 F. Supp. 1473,
1477 (N.D. Ga. 1998) (finding unaddressed claim abandoned); see also Resolution
The remainder of the City’s brief concerning sexual harassment focuses
upon Mr. Abernathy’s treatment of Ms. McCurry as a separate actionable claim. (Doc.
31 at 10-11). As explained above, this part of the City’s Motion is granted as this
claim has been abandoned because Ms. Pressley has clarified that she is not pursuing
a paramour favoritism claim.
Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (“We decline to
exercise our discretion to entertain this argument which was not fairly presented to
the district court.”); Coal. for the Abolition of Marijuana Prohibition v. City of
Atlanta, 219 F.3d 1301, 1326 (11th Cir. 2000) (failure to brief and argue issue at the
district court is sufficient to find the issue has been abandoned); Hudson v. Norfolk
S. Ry. Co., 209 F. Supp. 2d 1301, 1324 (N.D. Ga. 2001) (“When a party fails to
respond to an argument or otherwise address a claim, the Court deems such argument
or claim abandoned.”); cf. Road Sprinkler Fitters Local Union No. 669 v. Indep.
Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir. 1994) (concluding that a district court
“could properly treat as abandoned a claim alleged in the complaint but not even
raised as a ground for summary judgment”); McMaster v. United States, 177 F.3d
936, 940-41 (11th Cir. 1999) (claim may be considered abandoned when district court
is presented with no argument concerning a claim included in the plaintiff’s
Ms. Pressley has opposed the dismissal of her second gender discrimination
claim contained in Count I. “In a traditional failure-to-hire case, the plaintiff
establishes a prima facie case by showing that: (1) [s]he was a member of a protected
class; (2) [s]he applied and was qualified for a position for which the defendant was
accepting applications; (3) despite h[er] qualifications, [s]he was not hired; and (4)
after h[er] rejection the position remained open or was filled by a person outside h[er]
protected class. Welborn v. Reynolds Metals Co., 810 F.2d 1026, 1028 (11th Cir.
1987) (per curiam).” Schoenfeld v. Babbitt, 168 F.3d 1257, 1267 (11th Cir. 1999).
Alternatively, the Eleventh Circuit has stated that:
In cases where the evidence does not fit neatly into the classic prima
facie case formula, for example, we have stated that “[a] prima facie
case of disparate treatment can be established by any ‘proof of actions
taken by the employer from which we infer discriminatory animus
because experience has proved that in the absence of any other
explanation it is more likely than not that those actions were bottomed
on impermissible considerations.’” Hill, 841 F.2d at 1540 (quoting
Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576, 98 S. Ct. 2943, 57
L. Ed. 2d 957 (1978)).
Schoenfeld, 168 F.3d at 1268. Because Ms. Pressley complains that the City
discriminated against her by not making her a permanent hire after working as a
seasonal employee, her claim more appropriately matches the alternative prima facie
formulation for gender discrimination. This means she must point to sufficient
evidence from which a jury could reasonably infer gender discrimination by the City
or, in this instance, its agent, Mr. Abernathy.
The City asserts that Ms. Pressley’s discrimination claim fails because she
cannot show “that she was subjected to an adverse employment action in contrast
with similarly situated employees outside the protected class.” (Doc. 31 at 11-12).
However, in doing so, the City contends that “none of the employees who were
terminated from the seasonal layoff were hired permanently” (Doc. 31 at 12) and
ignores the body of competing evidence contained in its own investigative file as
substantiated by Ms. Austin. That evidence, instead, shows that all of the seasonal
employees other than Ms. Pressley (and one other seasonal male employee who quit)
became permanent employees.16 Ms. McCurry and Mr. Langston were never laid off,
and the remaining four male employees who were laid off with Ms. Pressley were
rehired at the end of October 2012.
Nonetheless, the court concludes that Ms. Pressley’s gender discrimination
claim is inadequate for the same reason that her retaliation claim presents a triable
issue–she lacks sufficient evidence of a gender-related animus, but she has adequate
proof of a retaliatory one on the part of the City. Ms. Pressley’s own description of
why she believes she has presented a triable issue of gender discrimination
underscores the correctness of the court’s conclusion:
Plaintiff is a female. There is no dispute that she was qualified for
her position. Plaintiff was terminated from her temporary position with
Defendant City and not hired on a permanent basis after she complained
about sexual harassment and filed charges with the EEOC. Every male
temporary laborer was hired full time by the City, except one who
voluntarily quit. (City Depo., 30:22-31:3, 32:4-12). The only female
hired by the City was McCurry who complied with Abernathy’s sexual
demands. (Doc. 37-2, ¶ 4). Sexual demands were not made of male
For this same reason, the City’s purported legitimate explanation for not
hiring Ms. Pressley–“no one got hired” (Doc. 31 at 13)–is contrary to the evidence.
(Doc. 44 at 23 n.5) (emphasis added).
Further, the City’s permanent hiring of Ms. McCurry (who never complained
about sexual harassment by Mr. Abernathy) and several male seasonal employees
(who also never complained about Mr. Abernathy’s harassing behavior), while not
hiring Ms. Pressley (who did complain), raises a reasonable inference of retaliation,
but not of gender discrimination. Cf. Richardson v. Alabama Pine Pulp Co., 277 F.
App’x 907, 909 (11th Cir. 2008) (finding no error in district court’s conclusion that
prima facie case of race discrimination was lacking when “the undisputed evidence
indicated that Richardson’s duties were split between an African-American, someone
in her protected class, and a white employee.”) (emphasis added).
The court acknowledges but rejects Ms. Pressley’s alternative efforts to save
her gender discrimination claim from dismissal based upon a mixed-motive analysis.
(Doc. 44 at 27-28). However, the court disagrees with Ms. Pressley that she has
adduced sufficient evidence of a discriminatory intent based upon her gender.
Therefore, the City’s Partial Motion is GRANTED as to Count I.
Ms. Pressley’s Constitutional Claims against the
The City raises two grounds for summary judgment on Ms. Pressley’s
constitutional claims asserted against it pursuant to § 1983. First the City asserts that
it “is entitled to summary judgment on the parallel theories and claims upon which
it seeks summary judgment on the Title VII claims . . . .” because “when the factual
basis for a plaintiff’s § 1983 equal protection claim is the same as her Title VII claim,
the elements of her § 1983 claim mirror the elements of her Title VII claim.” (Doc.
31 at 16). In support, the City cites to Crawford v. Carroll, 529 F.3d 961, 970 (11th
Cir. 2008) (“These elements also apply to a claim of race discrimination under § 1983
because the analysis of disparate treatment claims under § 1983 is identical to the
analysis under Title VII where the facts on which the claims rely are the same.”), and
Stallworth v. Shuler, 777 F.2d 1431, 1433 (11th Cir. 1985) (similar). (Doc. 31 at 16
n.19). Further, Ms. Pressley’s opposition does not refute or distinguish this binding
legal principle. Therefore, based upon the court’s previous analysis of Ms. Pressley’s
Title VII gender discrimination claim, her constitutional claims premised upon equal
protection and the City’s failure to rehire her because of her sex are likewise subject
to summary judgment. Because the court has denied summary judgment on Ms.
Pressley’s Title VII sexual harassment claim and the City has not sought summary
judgment on her retaliation claim, those corresponding constitutional claims are
unaffected by this particular principle.
However, the City also maintains that any remaining § 1983 claims are subject
to summary judgment “because Plaintiff bears an additional element of proof on
§ 1983 claims brought against a municipality . . . . [–]there must be proof of an
unconstitutional policy of the municipality.” (Doc. 31 at 16-17). The City’s argument
and cited cases correctly reflect the well-known rule, announced in Monell,17 for
imposing constitutional liability upon public bodies, like the City, by way of § 1983.
In response to the City’s Partial Motion, Ms. Pressley only expressly discusses
why imposing municipal liability on the City for not preventing sexual harassment
as protected under the equal protection clause satisfies Monell. As a result, Ms.
Pressley has only preserved her § 1983 claim against the City contained in Count IV
and has abandoned all of her other § 1983 claims against it, including her equal
protection claims asserted in Counts II and VIII. Thus, the City’s Partial Motion is
GRANTED as to Counts II and VIII of Ms. Pressley’s complaint.
Regarding contested Count IV, Ms. Pressley primarily relies upon Griffin v.
City of Opa-Locka, 261 F.3d 1295 (11th Cir. 2001), and the unpublished authority of
Bruno v. Monroe Cty., 383 F. App’x 845 (11th Cir. 2010) (per curiam), to convince
this court she has a triable equal protection-based harassment claim against the City.
The City likewise contends that Ms. Pressley’s policy and custom evidence is
The full citation is Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S. Ct.
2018, 56 L. Ed. 2d 611 (1978)
deficient in light of Griffin. Thus, because Griffin is integral to both sides’ positions,
the court discusses it at length below.
In setting out the appropriate framework for evaluating this type of claim, the
Griffin court explained:
Clearly, the City did not have a formal policy condoning or
endorsing sexual harassment or sexual assault by City employees.
Nevertheless, § 1983 liability may be imposed on a municipality based
on “governmental ‘custom’ even though such a custom has not received
formal approval through the body’s official decisionmaking channels.”
Id. at 795. This Court set out the standard for imposing such liability in
Brown, stating that:
[t]o prove § 1983 liability against a municipality based on
custom, a plaintiff must establish a widespread practice
that, “although not authorized by written law or express
municipal policy, is so permanent and well settled as to
constitute a ‘custom or usage’ with the force of law.”
Brown, 923 F.2d at 1481 (citations omitted). In addition, we have also
held that a municipality’s failure to correct the constitutionally offensive
actions of its employees can rise to the level of a custom or policy “if the
municipality tacitly authorizes these actions or displays deliberate
indifference” towards the misconduct. Brooks v. Scheib, 813 F.2d 1191,
1193 (11th Cir. 1987).
Griffin v. City of Opa-Locka, 261 F.3d 1295, 1308 (11th Cir. 2001).
The evidence of deliberate indifference to a widespread problem of sexual
harassment in Griffin was overwhelming. Specifically, the Eleventh Circuit
summarized that “without any question that sexual harassment was the on-going,
accepted practice at the City and that the City Commission, Mayor, and other high
ranking City officials knew of, ignored, and tolerated the harassment.” Id. at 1308.
Additionally, the record revealed a “workplace [that] was permeated with vulgar,
demeaning, and sexually suggestive conversations about women, improper demands
for sexual favors and dates, unwelcome sexual advances, as well as unfair treatment
for those women unwilling to reciprocate such conduct and who were not considered
‘team players.’” Id.
The court discussed in detail the numerous examples of harassing conduct that
occurred within the workplace, including the municipal manager’s sexual assault of
the plaintiff. Id. at 1308-12. Additionally, “[t]he City did not have a sexual
harassment policy, nor was there any specific person or entity designated to receive
sexual harassment complaints.” Id. at 1311. “There [also] was no sexual harassment
training.” Id. Ultimately, the Griffin court reversed the district court’s judgment as to
the municipality’s liability for the sexual assault because there was “no express
finding” of a custom or policy concerning rape or sexual assault, but “uph[e]ld the
jury’s conclusion that the City had a policy or custom of ignoring or tolerating gross
sexual harassment.” Id. at 1312.
Ms. Pressley’s policy and custom evidence includes: (i) Mr. Abernathy’s daily
demands for sexual favors from Ms. Pressley and Ms. McCurry; (ii) the failure to
distribute a sexual harassment policy to temporary employees (Doc. 30-1 at 18 at
65);18 and (iii) the failure to provide temporary employees with any training on sexual
harassment. Id. Additionally, Mr. Duncan testified that he was unaware of any sexual
harassment policy that was in place and did not recall receiving training. (See Doc.
37-5 at 8 at 32 (“Not to my knowledge, sir. . . . Not to my knowledge that there was
any policy”);19 id. at 8-9 at 32-33 (answering “No, sir” to question of whether Mr.
Duncan had ever gone “to a training session on sexual harassment?”). Another
Department supervisor, Mr. Hill, could not recall one way or the other whether the
City had a sexual harassment policy or whether he received any training. (Doc. 37-4
at 50; id. at 51).20 Importantly, the only documentation produced by the City
confirming that Mr. Abernathy has ever received such training are sign-in sheets from
The City claims to have had a sexual harassment policy in place during 2012
that was distributed to permanent employees, but the policy produced during
discovery does not specify an effective date (Doc. 26-5) and is not attached to a dated
memorandum issued by the City manager which would have been the customary
practice for personnel policies issued prior to 2013. (Doc. 44 at 8 ¶¶ 6, 8); (see also
Doc. 26-3 at 18 at 66-68).
Any first page references to Doc. 37-5 correspond with the court’s CM/ECF
Citing to Doc. 37-3 of the court file, Ms. Pressley also contends that Mr.
Bussey similarly responded negatively when asked if he had received any sexual
harassment training. (Doc. 44 at 34). However, as mentioned in n.9, Doc. 37-3 is a
second copy of Mr. Davis’s declaration.
November 2012 (i.e., post-dating Ms. Pressley’s last day of employment and the
filing of her EEOC charge). (Doc. 30-1 at 20 at 73).
Ms. Pressley also relies upon the testimony from Mr. Davis to show custom or
policy. In particular, Mr. Davis witnessed Mr. Abernathy harassing Ms. Pressley in
front of other supervisors and no one would do anything about it. (Doc. 37-2 at 2 ¶
5). Mr. Davis also complained directly to Mr. Abernathy about his conduct in late
August 2012, to which Mr. Abernathy responded, “‘Why? Are you fu*king her or
Additionally, Ms. Pressley points to a document dated October 15, 2012,
written by Jeff Feazell (“Mr. Feazell”), an employee with the Department, in which
he complained about feeling “uncomfortable” after witnessing on September 5, 2012,
Ms. McCurry’s making “cat noises from her seat in the truck [and Mr. Abernathy],
who was standing beside his truck, grabbed his crotch [and] shook it at her.” (Doc.
37-6 at 1). During her deposition, Ms. Austin acknowledged that, at some point after
Ms. Pressley had filed her original and amended charge (Doc. 30-1 at 46 at 178-79),
she had heard about Mr. Feazell’s complaint through the City’s Manager, but had not
ever seen the actual document. (Doc. 26-3 at 30 at 114). Ms. Austin did not know if
anyone had conducted an investigation into Mr. Feazell’s complaint. (Doc. 26-3 at
30 at 115).21
Ms. Pressley also maintains that merely having a sexual harassment policy in
place does not insulate the City from Monell liability, especially when that policy was
not disseminated to seasonal employees. Cf. Bruno, 383 F. App’x at 849 (recognizing
that mere existence of a sexual harassment policy “does not automatically satisfy [an
employer’s Title VII] burden” when invoking the Faragher/Ellerth affirmative
defense (quoting Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1314 (11th
Cir. 2001))). Ms. Pressley further contends that the above proof is sufficient to create
a jury question on her equal protection claim against the City. While the caliber of
Ms. Pressley’s evidence of harassment certainly falls short of Griffin, her evidence
of actual or constructive knowledge is much closer. Further, the Eleventh Circuit’s
holding in Griffin does not dictate that, in the absence of such extensive custom
evidence, a Monell claim against a municipality will not lie. Ultimately, the court is
The court acknowledges the City’s request, embedded in a footnote, that the
court not consider the written complaint made by Mr. Feazell as relevant custom or
policy evidence because Ms. Pressley had already been laid off by the time the
document was created. (Doc. 53 at 10 n.14). The City cites to no authority to support
its position and also has not separately moved to strike this evidence. To the extent
the City is asking the court to disregard this proof as temporally irrelevant, the request
is DENIED as underdeveloped, especially given that the letter refers to an incident
involving Mr. Abernathy that took place during Ms. Pressley’s employment with the
City. Alternatively, its request is TERMED as MOOT because sufficient evidence
otherwise exists in the record to support Ms. Pressley’s Monell claim against the City.
persuaded that a reasonable jury could return a verdict against the City as a “moving
force,” Monell, 436 U.S. at 694, 98 S. Ct. at 2038, behind Mr. Abernathy’s
widespread sexual harassing behavior because a totality of the circumstances reflects
the City’s extreme lack of attention and commitment to implement and enforce the
policy designed to protect its workforce from sexual harassment. Cf. Farley v. Am.
Cast Iron Pipe Co., 115 F.3d 1548, 1554 (11th Cir. 1997) (“Our circuit thus places
upon the employer an obligation to make reasonable efforts to know ‘what is going
on’ with respect to its own employees.”); id. (“Where there is no policy, or where
there is an ineffective or incomplete policy, the employer remains liable [under Title
VII] for conduct that is so severe and pervasive as to confer constructive
knowledge.”) (emphasis added).22 Thus, the City’s Partial Motion is DENIED as to
Ms. Pressley’s Negligent Training and Supervision
Claim against the City
Ms. Pressley bases her negligent training and supervision claim on the City’s
failure to prevent Mr. Abernathy’s harassing conduct. The City raises two grounds
in support of dismissing this state law claim. First, it contends that Ms. Pressley lacks
The court acknowledges that neither Bruno nor Farley involves a § 1983
sexual harassment claim. Nonetheless, these cases provide this court with persuasive
guidance about when a municipality’s lackadaisical attitude about a sexual
harassment policy can satisfy Monell.
proof “that the City knew or should have known that Abernathy would engage in
sexual harassment.” (Doc. 31 at 18). The City cites to several cases for support,
including Mardis v. Robbins Tire & Rubber Co., 669 So. 2d 885 (Ala. 1995).
In Mardis, the Alabama Supreme Court described the framework for
determining whether a plaintiff has presented a triable issue of negligent training and
[I]n the master and servant relationship, the master is held responsible
for the servant’s incompetency when notice or knowledge, either actual
or presumed, of the incompetency has been brought to the master. For
the master to be held liable for the servant’s incompetency, it must be
affirmatively shown that had the master exercised due and proper
diligence, the master would have learned of the incompetency. This may
be done by showing specific acts of incompetency and showing that they
were brought to the knowledge of the master, or by showing them to be
of such a nature, character, and frequency that the master, in the exercise
of due care, must have had notice of them. While specific acts of alleged
incompetency cannot be shown to prove that the servant was negligent
in doing or omitting to do the act complained of, it is proper, when
repeated acts of carelessness and incompetency of a certain character are
shown on the part of the servant, to leave it to the jury to determine
whether they would have come to the master’s knowledge had the
master exercised ordinary care.
Mardis, 669 So. 2d at 889 (emphasis added). The court finds that Ms. Pressley’s
evidence meets this standard for those same reasons explained above when analyzing
the sufficiency of her § 1983 Monell claim.
Second, the City argues that state-agent immunity protects it from liability.
(Doc. 31 at 19). In Ex parte Butts, 775 So. 2d 173 (Ala. 2000), the Supreme Court of
Alabama adopted the following state-agent immunity test:
A State agent shall be immune from civil liability in his or her personal
capacity when the conduct made the basis of the claim against the agent
is based upon the agent's
(1) formulating plans, policies, or designs; or
(2) exercising his or her judgment in the administration of a department
or agency of government, including, but not limited to, examples such
(a) making administrative adjudications;
(b) allocating resources;
(c) negotiating contracts;
(d) hiring, firing, transferring, assigning, or supervising
personnel; or . . . .
Notwithstanding anything to the contrary in the foregoing statement of
the rule, a State agent shall not be immune from civil liability in his or
her personal capacity
(1) when the Constitution or laws of the United States, or the
Constitution of this State, or laws, rules, or regulations of this State
enacted or promulgated for the purpose of regulating the activities of a
governmental agency require otherwise; or
(2) when the State agent acts willfully, maliciously, fraudulently, in bad
faith, beyond his or her authority, or under a mistaken interpretation of
Ex parte Butts, 775 So. 2d at 177-78 (emphasis by underlining added) (quoting Ex
parte Cranman, 792 So. 2d 392 (Ala. 2000), holding modified on other grounds by
Hollis v. City of Brighton, 950 So. 2d 300, 309 (Ala. 2006) (emphasis by italicizing
in Ex parte Cranman)).
In moving for summary judgment on this ground, the City analyzes the actions
of Mr. Dean, Mr. Abernathy’s supervisor, as “he was imposed with the duty of
training and supervising [Mr.] Abernathy.” (Doc. 31 at 19). However, Ms. Pressley
has not sued Mr. Dean or identified him as a wrongful actor. Instead, her complaint
seeks to hold the City liable for not preventing the wrongful actions of Mr.
Abernathy. Further, none of the cases cited by the City confirms that it would ever be
appropriate for this court to analyze the actions of Mr. Dean (instead of Mr.
Abernathy) when determining whether the defense of state-agent immunity is
properly invoked by the City.
Turning to the conduct of Mr. Abernathy, who is the agent that Ms. Pressley
relies upon to support her negligent training and supervision claim against the City,
the court finds that state-agent immunity does not apply to him, because a reading of
the record that is favorable to Ms. Pressley shows that he acted willfully and/or
beyond his authority in harassing her and that such a willful level of intent precludes
the application of state agent immunity. Cf. Hollis v. City of Brighton, 950 So. 2d 300,
305 (Ala. 2006) (“A finding of immunity, however, precludes a claim based in
negligence.”). Thus, for all these reasons, the City has not met its burden to show that
state-agent immunity protects it from liability on Ms. Pressley’s negligent training
and supervision claim. Accordingly, the City’s Partial Motion as to Count IX is
Mr. Abernathy’s Motion
Ms. Pressley’s Constitutional Claims against Mr.
Mr. Abernathy contends that he is entitled to summary judgment on Count II
(failure to hire on the basis of gender), Count IV (sexual harassment), and Count VIII
(retaliatory failure to rehire). These constitutional claims are brought against Mr.
Abernathy in his individual capacity and he has, in turn, expressly invoked the
defense of qualified immunity for some of them.
“The defense of qualified immunity completely protects government officials
performing discretionary functions from suit in their individual capacities unless their
conduct violates ‘clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Cottone v. Jenne, 326 F.3d 1352, 1357 (11th
Cir. 2003) (internal quotation marks omitted) (quoting Gonzalez v. Reno, 325 F.3d
1228, 1233 (11th Cir. 2003)). “To receive qualified immunity, a government official
first must prove that he was acting within his discretionary authority.” Id.
This is a two-part test. Under the first step, “the defendant must [prove that he
or she was] performing a function that, but for the alleged constitutional infirmity,
would have fallen within his legitimate job description.” Holloman ex rel. Holloman
v. Harland, 370 F.3d 1252, 1266 (11th Cir. 2004). Next, the defendant must prove
that he or she was “executing that job-related function.” Id. at 1267. “Once a
defendant establishes that he was acting within his discretionary authority, the burden
shifts to the plaintiff to show that the defendant is not entitled to qualified immunity.”
Cottone, 326 F.3d at 1358.
Until 2009, the Supreme Court required a two-part inquiry to determine the
applicability of qualified immunity, as established by Saucier v. Katz, 533 U.S. 194,
201, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d 272 (2001). Under the Saucier test, “[t]he
threshold inquiry a court must undertake in a qualified immunity analysis is whether
[the] plaintiff’s allegations, if true, establish a constitutional violation.” Hope v.
Pelzer, 536 U.S. 730, 736, 122 S. Ct. 2508, 2513,153 L. Ed. 2d 666 (2002).
If, under the plaintiff’s allegations, the defendant would have violated a
constitutional right, “the next, sequential step is to ask whether the right was clearly
established.” Cottone, 326 F.3d at 1358 (quoting Saucier, 533 U.S. at 201, 121 S. Ct.
at 2156). The “clearly established” requirement is designed to assure that officers
have fair notice of the conduct which is proscribed. Hope, 536 U.S. at 739, 122 S. Ct.
at 2515. This second inquiry ensures “that before they are subjected to suit, officers
are on notice their conduct is unlawful.” Saucier, 533 U.S. at 206, 121 S. Ct. at 2158.
The “unlawfulness must be apparent” under preexisting law.23 Anderson v.
Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97 L. Ed. 2d 523 (1987) (citing
Malley v. Briggs, 475 U.S. 335, 344-45, 106 S. Ct. 1092, 1097-98, 89 L. Ed. 2d 271
(1986)). Therefore, a temporal requirement exists related to this inquiry. More
particularly, a plaintiff must show that a reasonable public officer would not have
believed his actions to be lawful in light of law that was clearly established at the time
of the purported violation. See Anderson, 483 U.S. at 639, 107 S. Ct. at 3038
(“[W]hether an official protected by qualified immunity may be held personally liable
for an allegedly unlawful official action generally turns on the ‘objective legal
reasonableness’ of the action[,] assessed in light of the legal rules that were ‘clearly
established’ at the time it was taken[.]”) (emphasis added) (citation omitted);
Brosseau v. Haugen, 543 U.S. 194, 198, 125 S. Ct. 596, 599, 160 L. Ed. 2d 583
(2004) (“If the law at that time did not clearly establish that the officer’s conduct
would violate the Constitution, the officer should not be subject to liability or, indeed,
Only Supreme Court, Eleventh Circuit, and Alabama Supreme Court cases
can “clearly establish” the law. See Thomas v. Roberts, 323 F.3d 950, 953 (11th Cir.
2003) (“In this circuit, rights are ‘clearly established’ by decisions of the Supreme
Court, this court, or the highest court of the state in which the case arose.” (citing
Hamilton v. Cannon, 80 F.3d 1525, 1532 n.7 (11th Cir. 1996))).
even the burdens of litigation.”) (emphasis added); Brosseau, 543 U.S. at 198, 125
S. Ct. at 599 (“Because the focus is on whether the officer had fair notice that her
conduct was unlawful, reasonableness is judged against the backdrop of the law at the
time of the conduct.”) (emphasis added); see also Johnson v. Clifton, 74 F.3d 1087,
1093 (11th Cir. 1996) (“We know of no [preexisting] case which might have clearly
told Clifton that he could not take the disciplinary action indicated by an investigation
which was initiated before he even knew about the allegedly protected speech, and
in circumstances where the public concern implication was doubtful.”).
However, the Saucier framework was made non-mandatory by the Supreme
Court in Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 818, 172 L. Ed. 2d
565 (2009), in which the Court concluded that, “while the sequence set forth [in
Saucier] is often appropriate, it should no longer be regarded as mandatory.” Thus,
“judges of the district courts and the courts of appeals should be permitted to exercise
their sound discretion in deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances in the particular case
at hand.” Id.
Despite the Supreme Court’s modification of Saucier’s analytical process, the
substantive analysis remains unchanged; an officer is entitled to qualified immunity
protection as long as he “could have believed” his conduct was lawful. Hunter v.
Bryan, 502 U.S. 224, 227, 112 S. Ct. 534, 536, 116 L. Ed. 2d 589 (1991).Therefore,
to deny immunity, a plaintiff must affirmatively demonstrate that “no reasonable
competent officer would have” acted as the public official did. Malley v. Briggs, 475
U.S. 335, 341, 106 S. Ct. 1092, 1096, 89 L. Ed. 2d 271 (1986). Given these qualified
immunity principles, the court addresses each constitutional count in turn.
Count II–Disparate Treatment in
Hiring on the Basis of Sex
In Count II of Ms. Pressley’s complaint, she contends that Mr. Abernathy did
not hire her as a permanent employee because of her gender in violation of the equal
protection clause. Mr. Abernathy has raised qualified immunity as an affirmative
defense. (Doc. 27 at 14-15).24 The court has already analyzed the merits of Ms.
Pressley’s Title VII gender discrimination claim under Count I in conjunction with
the City’s Partial Motion and found Ms. Pressley’s evidence to be insufficient to
create a triable issue.
As explained in Crawford, supra, “the analysis of disparate treatment claims
under § 1983 is identical to the analysis under Title VII where the facts on which the
claims rely are the same.” Therefore, the court finds that Mr. Abernathy is entitled to
qualified immunity on Count II because, akin to the court’s above analysis of Count
Any page references to Doc. 27 correspond with the court’s CM/ECF
I, no reasonable jury could find that Ms. Pressley has shown a constitutional violation
by Mr. Abernathy with respect to the permanent hiring process on the basis of
gender.25 Therefore, Mr. Abernathy’s Motion is GRANTED as to Count II.
Count IV–Sexual Harassment
Mr. Abernathy does not expressly invoke qualified immunity in response to
Ms. Pressley’s equal protection-based sexual harassment claim. Mr. Abernathy does,
however, maintain that Ms. Pressley’s evidence “is far below the ‘minimum level of
severity or pervasiveness necessary for harassing conduct to constitute discrimination
in violation of Title VII.’” (Doc. 27 at 19) (quoting Mendoza, 195 F.3d at 1246, and
citing collection of persuasive cases).
In opposition, Ms. Pressley points out that her case is significantly different
than Mendoza. Consistent with the court’s denial of summary judgment to the City
on Count III above, and considering the key facts in Mendoza discussed below, the
“Mendoza worked in Borden’s Miami facility for a total of sixteen months” and
for the supervisor who she complained about for eleven months. 195 F.3d at 1242,
1243. Mendoza testified that her supervisor “was constantly watching [her] and
Ms. Pressley has not challenged whether Mr. Abernathy was exercising his
discretionary authority concerning Count II.
following [her] around and looking [her] up and down[.]” 195 F.3d at 1242 (internal
quotation marks omitted). She “also testified about two instances when [her
supervisor] ‘looked at [her] up and down, and stopped in [her] groin area and made
a ... sniffing motion.’” Id. at 1243. “Mendoza admitted that [her supervisor] also
never said anything to her during what she perceived to be the sniffing nor the
looking up and down.” Id. (emphasis in original).
Mendoza alleged that on one occasion at the fax machine, her supervisor
“‘rubbed his right hip up against [her] left hip’ while touching her shoulder and
smiling.” Id. “Finally, Mendoza described an incident when she confronted [her
supervisor] by entering his office and saying ‘I came in here to work, period.’” Id.
According to Mendoza, [he] responded by saying ‘Yeah, I'm getting fired up, too.’”
Id. “[T]his was the only time where [her supervisor] said anything to Mendoza that
she perceived to be of a sexual nature.” Id.
In contrast to the dubious, if not non-existent, sexually-driven conduct in
Mendoza, and, as this court summarized Ms. Pressley’s evidence in addressing Count
IV of the City’s Partial Motion:
Ms. Pressley’s sexual harassment claim is premised upon Mr.
Abernathy’s repeated, numerous, and daily requests for her to show him
her tattoos and her nude photos. Additionally, on at least one occasion,
Mr. Abernathy pressured her to show him her breasts and in another
instance asked her “does the carpet match the drapes?” Often times these
sexually-demeaning incidents occurred in front of other employees. All
of these acts occurred over a relatively short period of time and, based
upon her testimony, a reasonable jury could infer that Ms. Pressley
endured some type of sexually-charged comment, question, or demand
for a sexual favor by Mr. Abernathy at least once a week, if not more
frequently than that. . . .
Further, the record, taken in a light most favorable to Ms.
Pressley, substantiates that she did not welcome Mr. Abernathy’s
advances, that she rejected doing any of the sexually-charged acts that
he was asking of her, that she was subjectively bothered by and
complained to Mr. Bussey about Mr. Abernathy’s objectionable
conduct, that, despite her complaint, Mr. Abernathy’s behavior
continued, and that she demanded that Mr. Abernathy stop.
See supra at 24-25. Additionally, and unlike Mendoza, 195 F.3d at 1243 n.2, Ms.
Pressley (i) has adduced a corroborating eye-witness, Mr. Davis, who confirms Mr.
Abernathy’s harassing conduct towards her occurred almost daily and (ii) has offered
further evidence of Mr. Abernathy’s sexually-driven conduct through his similar
treatment of Ms. McCurry.
Turning to the Mendoza factors, Ms. Pressley has undoubtedly shown the
frequency of the gender-based offensive conduct, not only through her own
testimony, but also through Mr. Davis’s corroborating declaration as an eye-witness.
Based upon this evidence, a reasonable jury could infer that Ms. Pressley endured
some type of sexually-charged comment, question, or demand by Mr. Abernathy at
least once a week, if not more frequently than that.26 Likewise, a supervisor’s repeated
requests to see an employee’s tattoos, nude photos and, at least on one occasion, make
a separate request for her to show him her breasts as well as ask her about the color
of her pubic hair over a six-month period go well beyond boorish or flirtatious
behavior and are sufficiently severe to satisfy the second Mendoza factor.
Concerning the third factor, Mr. Abernathy’s sexually-charged comments were
more than mere offensive utterances about women generally as they were squarely
directed at either Ms. Pressley or Ms. McCurry–the only female employees who
worked for the Department. Mr. Abernathy was unrelenting in his sexually-explicit
treatment of Ms. Pressley, despite her unequivocal and repeated resistance to his
sexual demands. Further, often times Mr. Abernathy would make these sexuallydemeaning comments in front of other employees, and Ms. Pressley testified how his
actions made her feel ashamed and embarrassed. (Doc. 26-1 at 54 at 209-10).
The fourth Mendoza factor has both a subjective and an objective component.
See Gupta v. Florida Bd. of Regents, 212 F.3d 571, 586 (11th Cir. 2000) (“The fourth
factor in determining whether conduct and statements are ‘sufficiently severe or
Based upon this court’s calculations, that translates into a range of
approximately 26 sexual comments or questions directed at Ms. Pressley by Mr.
Abernathy, if occurring once a week, or 130, if occurring every day of a five-day
work week. She also witnessed Mr. Abernathy’s similar treatment of Ms. McCurry.
pervasive’ to create a hostile work environment is whether the conduct and statements
unreasonably interfere with the plaintiff’s job performance–a factor which involves
both a subjective and objective inquiry.” (citing Mendoza, 195 F.3d at 1246),
overruled on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
53, 68, 126 S. Ct. 2405, 2415, 165 L. Ed. 2d 345 (2006)).
This court is aware that Title VII does not obligate Ms. Pressley to show that
Mr. Abernathy’s behavior caused her serious psychological harm. Harris, 510 U.S.
at 22, 114 S. Ct. at 22. Instead, she must present sufficient evidence to conclude that
“the environment would reasonably be perceived, and [wa]s perceived [by her], as
hostile or abusive . . . .” Id. (emphasis added) (citing Meritor Sav. Bank, FSB v.
Vinson, 477 U.S. 57, 67, 106 S. Ct. 2399, 2405, 91 L. Ed. 2d 49 (1986)). Here, the
court finds that Ms. Pressley’s complaints to Mr. Bussey and to Mr. Abernathy
directly reflect her subjective feelings that Mr. Abernathy’s conduct was
unreasonably interfering with her job. The court further easily finds that repeated
demands from a supervisor to see her tattoos and nude photos, a separate request for
her to expose her breasts, and a question about the color of her pubic hair “would …
have interfered with a reasonable employee’s performance of her job.” Gupta, 212
F.3d at 586.
The court acknowledges the litany of sexual harassment cases cited by Mr.
Abernathy that are lifted from the Mendoza decision. (Doc. 27 at 19-20 n.60). As all
of them arise outside of the Eleventh Circuit they are, of course, not binding on this
court. The Mendoza court simply referred to these cases to better frame the sexual
harassment issue before it–the Eleventh Circuit did not expressly or implicitly adopt
those decisions by other circuits as binding precedent. Further, Mr. Abernathy has
made no attempt to highlight those cases that have facts that are comparable to this
case and, in any event, the court is simply not persuaded to follow any of them in
light of the differing facts contained in this record. The court similarly is not
persuaded to follow the Fifth Circuit and Seventh Circuit decisions or the
unpublished, and therefore non-binding, Eleventh Circuit opinions mentioned
elsewhere in Mr. Abernathy’s brief due to their differing facts. (Doc. 27 at 24-27).
For example, Mr. Abernathy relies upon the Fifth Circuit’s unpublished
decision in the racial hostile environment case of Barkley v. Singing River Elec.
Power Ass’n, 433 F. App’x 254 (5th Cir. 2011), and contends that Ms. Pressley’s
allegations of sexual harassment are too generalized to withstand summary judgment.
(Doc. 27 at 24-25). If all Ms. Pressley had claimed was that Mr. Abernathy harassed
her on a daily basis, then her case would be closer to Barkley. However, she gave
several specific examples of harassing incidents that she experienced and her
allegations about repeated instances of harassing behavior have been corroborated by
Mr. Davis. Also, the plaintiff in Barkley “testified that the harassment had no impact
on his work.” 433 F. App’x at 258. Therefore, Ms. Pressley’s case is significantly
The court also rejects Mr. Abernathy’s reliance upon Corbitt v. Home Depot
U.S.A., Inc., 573 F.3d 1223 (11th Cir.) (“Corbitt I”), opinion vacated and superseded,
589 F.3d 1136 (11th Cir. 2009), reh’g en banc granted, opinion vacated, 598 F.3d
1259 (11th Cir.), and dismissed as settled on reh’g en banc, 611 F.3d 1379 (11th Cir.
2010)27 and Gupta as inapposite to the facts at issue here. More specifically, in the
now-vacated Corbitt I decision, the Eleventh Circuit characterized many of the
supervisor’s challenged comments as either “merely complimentary” or “clearly
flirtatious,” and clarified that such “ordinary” statements, even by a supervisor, are
“not sexual harassment for the purposes of Title VII.” Corbitt, 573 F.3d at 1240.
Concerning vacated opinions, the Eleventh Circuit has instructed:
Parts of decisions that are vacated and have not been
reinstated “have no legal effect whatever. They are void.”
United States v. Sigma Int’l, Inc., 300 F.3d 1278, 1280
(11th Cir. 2002) (en banc). We are free to give statements
in a vacated opinion persuasive value if we think they
deserve it. See Tallahassee NAACP v. Leon County, 827
F.2d 1436, 1440 (11th Cir. 1987).
Friends of Everglades v. S. Florida Water Mgmt. Dist., 570 F.3d 1210, 1218 (11th
Likewise, in Gupta, the bulk of what the plaintiff complained about as harassment by
her supervisor lacked “a[n] [apparent] sexual or gender-related nature–‘sexual
advances, requests for sexual favors, [or] conduct of a sexual nature.’” Gupta, 212
F.3d at 583 (quoting Mendoza, 195 F.3d at 1245). Here, Mr. Abernathy’s comments
were unmistakably sexual, far from complimentary or ordinary, and could only be
considered flirtatious if, perhaps, he was acting in an X-rated movie. Therefore, the
court concludes that, based upon a totality of the circumstances, a reasonable jury
could return a verdict in Ms. Pressley’s favor against Mr. Abernathy for sexual
harassment, and Mr. Abernathy’s Motion is DENIED as to Count IV.
Count VIII–Disparate Treatment in
Hiring on the Basis of Retaliation
To the extent that part of Count VIII overlaps with Ms. Pressley’s gender-based
allegations contained in Count II, Mr. Abernathy’s Motion is GRANTED for those
reasons discussed supra. However, Mr. Abernathy’s Motion is insufficiently
developed and unpersuasive with respect to Ms. Pressley’s § 1983 claim premised
upon retaliation, and accordingly is DENIED. In particular, Mr. Abernathy invokes
the status-based standard applicable in Title VII discrimination cases without ever
mentioning the prima facie formulation for retaliation claims. (See Doc. 27 at 29
(describing prima facie standard for Title VII discrimination claims to include
evidence of an adverse employment action and citing to Crawford, 529 F.3d at 97071)). However, ever since the Supreme Court’s decision in Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006), retaliation
claims are subject to a more relaxed standard than status-based ones. See id. at 68,
126 at 2415 (internal quotation marks omitted) (“In our view, a plaintiff must show
that a reasonable employee would have found the challenged action materially
adverse, which in this context means it well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.”).
Similarly, while Mr. Abernathy acknowledges in his brief Ms. Pressley’s
complaints about his harassment and her additional allegations made in Count VIII
when compared with Count II (Doc. 27 at 28), the remainder of his argument treats
Count VIII as being limited to gender-based discrimination. To the contrary, Count
VIII contains retaliation-based language alleging that Ms. Pressley “filed an EEOC
charge for sex discrimination and retaliation” (Doc. 1 at 22 ¶ 99) and that she “was
not rehired . . . because Plaintiff opposed gender-based discriminatory practices.” (Id.
¶ 101). Importantly, Mr. Abernathy never even uses the term “retaliation” much less
addresses Ms. Pressley’s retaliation claim head on, and, consequently, he has wholly
failed to carry his initial burden, as the movant, on summary judgment regarding the
merits of this particular claim.28 See Reese v. Herbert, 527 F.3d 1253, 1268 (11th Cir.
2008) (“The movant . . . continues to shoulder the initial burden of production in
demonstrating the absence of any genuine issue of material fact, and the court must
satisfy itself that the burden has been satisfactorily discharged.”) (emphasis added).
This same reasoning applies to Mr. Abernathy’s passing reference made to a
qualified immunity defense that appears to relate back to gender discrimination. (See
Doc. 27 at 30 (“Likewise, to the extent that plaintiff claims that Abernathy failed to
do more than he did, such would be protected by qualified immunity, as set forth in
the discussion above.”)). Additionally, while Mr. Abernathy boldly asserts that Ms.
Pressley “has failed to show that Abernathy caused her to not be hired . . . .” (Doc. 27
at 27), a reasonable inference can be drawn from this record that Mr. Abernathy,
angered by Ms. Pressley’s opposition to sexual harassment and her specifically telling
him to stop, was indeed the City’s decision-maker who caused or, at a minimum,
substantially contributed to the non-hiring of Ms. Pressley on a permanent basis by
(i) promising her such a position, but holding onto her paperwork and submitting it
to personnel only after “finding it on his desk” (Doc. 27 at 16), and (ii) giving
shifting, if not nonsensical, explanations during his deposition about why she was not
As such, Mr. Abernathy, like the City, has only filed a partial motion for
hired, including blaming her for the failure to complete the paperwork properly (even
though he confirmed turning her application into personnel) or to come see him
personally and/or referencing that he did not have her paperwork, but that he did have
an EEOC claim. (Doc. 26-2 at 54 at 211). Therefore, even if Mr. Abernathy had
properly invoked qualified immunity as a defense to Ms. Pressley’s retaliation claim
(which he has not), a jury would have to resolve a series of material factual issues
before the court could properly evaluate whether a defense of qualified immunity bars
that claim. See, e.g., Johnson v. Breeden, 280 F.3d 1308, 1318 (11th Cir. 2002) (“It
is important to recognize, however, that a defendant is entitled to have any
evidentiary disputes upon which the qualified immunity defense turns decided by the
jury so that the court can apply the jury’s factual determinations to the law and enter
a post-trial decision on the defense.”).29
Mr. Abernathy’s reply brief misses the mark as well. Although he mentions
that the record lacks a “showing that he was aware of the EEOC charge at exactly the
same time the City” did (Doc. 51 at 9), he ignores the sexual harassment complaint
that Ms. Pressley made to him directly and her ability to show opposition-based Title
VII retaliation. More specifically, “[a]n employee is protected from discrimination if
(1) ‘[s]he has opposed any practice made an unlawful employment practice by this
subchapter’ (the opposition clause) or (2) ‘[s]he has made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or hearing under this
subchapter’ (the participation clause).” Clover v. Total Sys. Servs., Inc., 176 F.3d
1346, 1350 (11th Cir. 1999) (on petition for rehearing) (citing 42 U.S.C. § 2000e(3)(a)).
Ms. Pressley’s State Law Claims against Mr.
Count X–Invasion of Privacy
Ms. Pressley maintains that Mr. Abernathy’s treatment of her also constitutes
an invasion of privacy under Alabama law. As the Supreme Court of Alabama has
summarized the scope of an action for invasion of privacy:
Since 1948, beginning with the case of Smith v. Doss, 251 Ala.
250, 37 So. 2d 118 (1948), Alabama has recognized the tort of “invasion
of the right to privacy.” See Liberty Loan Corporation of Gadsden v.
Mizell, 410 So. 2d 45 (Ala. 1982); Hamilton v. South Central Bell
Telephone Company, 369 So. 2d 16 (Ala. 1979).
It is generally accepted that the invasion of privacy tort consists
of four distinct wrongs: 1) the intrusion upon the plaintiff’s physical
solitude or seclusion; 2) publicity which violates the ordinary decencies;
3) putting the plaintiff in a false, but not necessarily defamatory,
position in the public eye; and 4) the appropriation of some element of
the plaintiff’s personality for a commercial use. Norris v. Moskin Stores,
Inc., 272 Ala. 174, 132 So. 2d 321 (Ala. 1961), citing W. Prosser, Law
of Torts, pp. 637-39 (2d ed. 1955).
Phillips v. Smalley Maintenance Services, Inc., 435 So. 2d 705, 708 (Ala. 1983)
(footnote omitted) (emphasis added). The Supreme Court of Alabama also has more
specifically described a privacy claim premised upon the ground of wrongful
[T]he wrongful intrusion into one’s private activities in such a manner
as to outrage or cause mental suffering, shame, or humiliation to a
person of ordinary sensibilities. Phillips v. Smalley Maintenance
Services, 435 So. 2d 705 (Ala. 1983); Restatement (Second) of Torts §
McIsaac v. WZEW-FM Corp., 495 So. 2d 649, 651 (Ala. 1986).
Mr. Abernathy argues in his Motion that summary judgment is appropriate, in
part, because “[t]here is no alleged physical contact.” (Doc. 27 at 32). He cites to
Rose v. SMI Steel LLC, 18 F. Supp. 3d 1317 (N.D. Ala. 2014), for legal support. See
id. at 1321 (“For sexual harassment to be actionable as invasion of privacy, ‘Alabama
courts have generally required invasion of privacy claims to allege both ongoing,
persistent verbal harassment and unwanted physical contact.’” (quoting Austin v.
Mac-Lean Fogg Co., 999 F. Supp. 2d 1254, 1263 (N.D. Ala. 2014))); see also Austin,
999 F. Supp. 2d at 1263 (citing collection of state court cases in which cognizable
privacy claim included a physical component, such as Ex parte Atmore Cmty. Hosp.,
719 So. 2d 1190, 1194 (Ala. 1998), Phillips v. Smalley Maint. Servs., Inc., 435 So.
2d 705, 711 (Ala. 1983), and Cunningham v. Dabbs, 703 So. 2d 979, 980-81, 982
(Ala. Civ. App. 1997)).
He also challenges this claim on the basis that Ms. Pressley has not shown that
his “conduct was so outrageous that it caused [her] mental suffering, shame, or
humiliation.” (See Doc. 27 at 31 (citing Baldwin v. Blue Cross/Blue Shield of
Alabama, 480 F.3d 1287 (11th Cir. 2007)). Ms. Pressley has testified that Mr.
Abernathy’s actions caused her to feel ashamed and embarrassed.
Ms. Pressley solely cites to Busby v. Truswal Sys. Corp., 551 So. 2d 322 (Ala.
1989), in opposition to Mr. Abernathy’s Motion. In Busby, the court framed the
privacy question as “whether there was an offensive or objectionable prying or
intrusion into the plaintiffs’ private affairs or concerns.” 551 So. 2d at 324. After
describing 17 different categories of evidence that included a plethora of openly
sexual incidents as well as inappropriate physical contact, such as stroking the
plaintiffs’ necks, the Busby court determined that “[a] jury could reasonably
determine from this evidence that Deaton pried or intruded into the plaintiffs’ sex
lives in an offensive or objectionable manner and thereby invaded their right of
privacy.” Id. Ms. Pressley has not offered one example of a harassment case in which
a claim for the invasion of privacy properly went to the jury despite the absence of
any physical incident.
The court is persuasively guided by the observation in Austin (as restated in
Rose) that a triable privacy claim involving sexually-harassing conduct customarily
includes some type of offensive physical aspect to be cognizable under Alabama law.
Further, in the absence of any physical contact or physically-threatening conduct by
Mr. Abernathy, the court finds that his sex-based propositions and other comments
aimed at Ms. Pressley were not sufficiently outrageous or personally intrusive to
constitute a triable invasion of privacy claim. See Baldwin, 480 F.3d at 1309, 1294,
1295 (“Assuming that Head did everything that Baldwin said he did [including asking
her to ‘blow [him], breathing down her neck, and unzipping his pants fly and moving
the zipper up and down in front of her], his harassment of Baldwin was not
sufficiently outrageous as a matter of Alabama law for either claim [i.e., invasion of
privacy or tort of outrage.]” (citing McIsaac, 495 So. 2d at 651-52, 650 (finding
insufficient invasion of privacy claim based upon several invitations to dinner, an
attempt to kiss, efforts to have an affair, and other more generalized objectionable
conduct)). Accordingly, Mr. Abernathy’s Motion is GRANTED as to Count X.
For reasons similar to the court’s invasion of privacy ruling, Mr. Abernathy’s
Motion is also GRANTED as to Count XI. The Alabama Supreme Court first
recognized the tort of outrage as a viable cause of action in American Rd. Serv. Co.
v. Inmon, 394 So. 2d 361, 365 (Ala. 1980) (joining other states in “recognizing that
one who by extreme and outrageous conduct intentionally or recklessly causes severe
emotional distress to another is subject to liability for such emotional distress and for
bodily harm resulting from the distress”). For an action to be sufficiently extreme, it
must be “so outrageous in character and so extreme in degree as to go beyond all
possible bounds of decency, and to be regarded as atrocious and utterly intolerable
in a civilized society.” Inmon, 394 So. 2d at 265. Additionally, “[t]he emotional
distress thereunder must be so severe that no reasonable person could be expected to
endure it.” Id.
As support for his Motion, Mr. Abernathy relies upon Baldwin, supra, and
points out that “even after undergoing all that plaintiff says she suffered, the plaintiff
was desirous of continuing to work, in a full-time capacity, in the same situation, with
the same supervisor.” (Doc. 27 at 33). Thus, Mr. Abernathy suggests that Ms.
Pressley’s efforts to become a permanent employee mean her emotional distress could
not have reached the requisite level in which “no reasonable person could be expected
to endure it.”
In opposition, Ms. Pressley cites to Rice v. United Ins. Co. of Am., 465 So. 2d
1100 (Ala. 1984) and Busby. (Doc. 40 at 28, 29). Rice involved a plaintiff who, after
becoming pregnant, was a target of her supervisor’s organized efforts “to force her
to take disability leave rather than to work throughout her pregnancy.” 465 So. 2d at
1102. The plaintiff’s supervisor was allegedly unrelenting in his tactics, including
“falsely accus[ing] her . . . of incompetence” and withholding “vital business
information . . . from her[.]” Id. Eventually she was fired and suffered a miscarriage
within one week of that dismissal. Id. Based upon these dramatically different facts,
the Alabama Supreme Court found that the trial court had improperly dismissed the
plaintiff’s claim for tort of outrage. Id. Because Rice is such an inapposite case, it
does not persuade this court that Ms. Pressley has a viable outrage claim.
The court has already discussed the voluminous categories of harassing
behavior at issue in Busby and found it to be strikingly dissimilar to the more limited
scope of Ms. Pressley’s case. Therefore, Busby does not convince the court that Ms.
Pressley has a cognizable outrage claim, and she offers no other authorities for the
court to consider. Ultimately, while Ms. Pressley’s evidence of harassment is
sufficient to satisfy Title VII’s less exacting standard, she lacks proof of sufficiently
egregious conduct and objectively extreme emotional distress to substantiate an
outrage claim. See Potts v. Hayes, 771 So. 2d 462, 465 (Ala. 2000) (describing the
“so limited” nature of outrage and observing that actionable conduct has been
recognized in only three categories of cases, including Busby-like “‘egregious sexual
harassment’”); (see also Doc. 27 at 33 (“In short, whatever this conduct may be, as
alleged, it is not outrage.”)).
Mr. Abernathy’s Strike Motion
The first part of Mr. Abernathy’s Strike Motion (Doc. 52) seeks to strike the
last sentence to the third paragraph of Ms. Pressley’s declaration (Doc. 37-1) filed on
March 3, 2016. That sentence states:
The three-month probation appears to be an excuse made up by Mr.
Abernathy or the City after I filed my EEOC charge and this lawsuit.
(Doc. 37-1 at 2 ¶ 3). Without citing to any authority, Mr. Abernathy maintains this
sentence “constitutes speculation, opinion, matter beyond the personal knowledge of
the witness, and inadmissible conclusion.” (Doc. 52 at 1). This section of the Strike
Motion is TERMED as MOOT because the court does not rely on this declarative
statement as material evidence in denying summary judgment to Mr. Abernathy or the
City in part.
The second part of Mr. Abernathy’s Strike Motion seeks to strike the first
sentence of the fourth paragraph of Ms. Pressley’s declaration. That sentence states:
I was never told that I should return to work on January 3, 2013
or at any other time.
(Doc. 37-1 at 2 ¶ 4).
Mr. Abernathy contends that this part of her declaration improperly contradicts
Ms. Pressley’s prior deposition testimony. Mr. Abernathy refers to Van T. Junkins &
Associates, Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir. 1984) (“When a
party has given clear answers to unambiguous questions which negate the existence
of any genuine issue of material fact, that party cannot thereafter create such an issue
with an affidavit that merely contradicts, without explanation, previously given clear
testimony.”), and Kernel Records Oy v. Mosley, 694 F.3d 1294, 1299-1300 (11th Cir.
2012) (“Relying on the sham affidavit doctrine, the district court disregarded
Gallefoss’s declaration, stating the ‘deposition testimony was clear’ and a declaration
cannot be used to create a factual dispute when ‘a party has given clear answers to
The court has read the referenced excerpts from Ms. Pressley’s deposition
transcript and compared them to Ms. Pressley’s declaration in context several times.
The court does not agree with Mr. Abernathy that a clear contradiction exists between
the two forms of evidence because they relate to different topics–Ms. Pressley’s
vague recollection of a general time frame for seasonal employees to start as
permanent employees as testified to in her deposition versus her recollection of never
being given a specific starting date for her permanent employment as set forth in her
declaration. In any event, that disagreement is of no consequence because the court
does not rely on this declarative statement as material evidence in denying summary
judgment to Mr. Abernathy or the City in part. Therefore, the second portion of the
Strike Motion is also TERMED as MOOT.
The City’s Partial Motion is GRANTED IN PART and DENIED IN PART.
Mr. Abernathy’s Motion is GRANTED IN PART and DENIED IN PART. Mr.
Abernathy’s Strike Motion is TERMED as MOOT. The City’s embedded request
to disregard Mr. Feazell’s complaint as part of Ms. Pressley’s policy and custom
evidence is DENIED or, alternatively, TERMED as MOOT.
All paramour favoritism and all disparate treatment in job assignment claims
are HEREBY DISMISSED WITH PREJUDICE. Further, the following Counts are
HEREBY DISMISSED WITH PREJUDICE: Count I, Count II, Count VIII
(against the City), Count VIII (against Mr. Abernathy for gender-discrimination with
retaliation remaining for trial), Count X, and Count XI.
The Counts remaining in the action are Counts III, IV, V, VI, VII, VIII (claim
for retaliation against Mr. Abernathy only), and IX. By separate order, the court will
set this case for a pretrial conference.
DONE and ORDERED this the 7th day of September 2016.
VIRGINIA EMERSON HOPKINS
United States District Judge
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