Brooks v. State of Alabama Department of Human Resources et al

Filing 42

MEMORANDUM OPINION. Signed by Judge Madeline Hughes Haikala on 4/30/14. (ASL)

FILED
2014 Apr-30 PM 02:42
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CATHERINE E. BROOKS,

}
}
PLAINTIFF,
}
}
v.
}
}
THE STATE OF ALABAMA
}
DEPARTMENT OF HUMAN
}
RESOURCES DIRECTOR, NANCY }
T. BUCKNER, JEFFERSON
}
COUNTY DEPARTMENT OF
}
HUMAN RESOURCES,
}
DIRECTOR AMANDA RICE,
}
CATHERINE DENARD, ANGELA }
LACY MCCLINTOCK, PATRICIA }
MUSCOLINO,

CASE NO.: 2:10-CV-02099-MHH

DEFENDANTS.
MEMORANDUM OPINION
Plaintiff Catherine E. Brooks formerly worked as a program manager for the
Jefferson County Department of Human Resources. According to Ms. Brooks,
while she was an employee of the Department, her supervisors discriminated
against her on the basis of her race, sex, and age and retaliated against her after she
protested the purportedly unlawful treatment of a co-worker. Ms. Brooks contends
that the Department and some of its employees violated her rights under the
following statutes: Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981; 42

U.S.C. § 1983; and the Age Discrimination in Employment Act of 1967 (ADEA). 1
In her lawsuit, Ms. Brooks seeks compensatory and punitive damages and
equitable relief, including back-pay, lost wages, and re-instatement. (Doc. 14, pp.
4-5).
Defendants Jefferson County Department of Human Resources, State of
Alabama Department of Human Resources, Nancy Buckner, Amanda Rice, and
Angela McClintock ask the Court to enter summary judgment on all of Ms.
Brooks’s claims. 2 (Doc. 31). As explained in greater detail below, the Court
grants the motion because Ms. Brooks has not presented evidence that establishes a
prima facie case of discrimination and retaliation.
SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). Rule 56 “mandates the entry of summary
judgment after adequate time for discovery and upon motion, against a party who
fails to make a showing sufficient to establish the existence of an element essential
to that party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
1

Initially, Ms. Brooks also asserted a claim under the Americans with Disabilities Act (ADA).
The court dismissed that claim early in this litigation. (Doc. 14; Doc. 19).
2

Ms. Brooks did not serve defendants Catherine Denard and Patricia Muscolino, so those
defendants have not moved for summary judgment.
2

The moving party bears the initial burden of showing the Court, by reference
to materials on file, that there are no genuine issues of material fact that should be
decided at trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th
Cir. 2004) (citing Celotex, 477 U.S. at 323). “When a moving party has discharged
its burden, the non-moving party must then ‘go beyond the pleadings,’ and by its
own affidavits, or by ‘depositions, answers to interrogatories, and admissions on
file,’ designate specific facts showing that there is a genuine issue for trial.”
Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995) (quoting
Celotex, 477 U.S. at 324).
When considering a summary judgment motion, the Court must view the
evidence in the record in the light most favorable to the non-moving party. Hill v.
Wal-Mart Stores, Inc., 510 Fed. Appx. 810, 813 (11th Cir. 2013). “The court need
consider only the cited materials, but it may consider other materials in the record.”
Fed. R. Civ. P. 56(c)(3).
FACTUAL BACKGROUND
Ms. Brooks’s Employment History at the Department
Ms. Brooks worked for the Jefferson County Department of Human
Resources from 2001 until 2010. She was a program supervisor between 2005 and
2010. (Doc. 35-2). In March 2006, Ms. Brooks received a written warning from
her direct supervisor, Terry Beasley, for “insubordination: failure to follow a
3

directive.” (Doc. 35-2, pp. 15-16). Nine months later, Ms. Brooks received an
official reprimand from Beasley for “insubordination” and “failure to perform job
properly.” (Doc. 35-4, pp. 3-6). 3
The record concerning Ms. Brooks’s job performance in 2007 is
unremarkable. On June 18, 2008, Ms. Brooks’s immediate supervisor, Catherine
Denard, told Ms. Brooks that Angela McClintock wanted Margaret Moore, another
employee of the Department, “written up.”

Ms. Brooks, Ms. Moore’s direct

supervisor, thought that Ms. Moore’s work was satisfactory. (Doc. 31-2, p. 88).
Ms. Brooks was unwilling to follow Ms. Denard’s instruction. She told Ms.
Denard that the State of Alabama’s personnel policies do not permit supervisors to
write up an employee for something she did not do. (Doc. 31-2, pp. 91, 96). In
response, Ms. Denard asked Ms. Brooks to go with her to Ms. McClintock’s office
to discuss the matter. Along the way, Ms. Brooks collapsed and was hospitalized.
(Doc. 31-2, p. 90). According to Department records, Ms. Moore received an
official warning on July 24, 2008, for failure to perform job and insubordination.
(Doc. 35-6, p. 3).

3

In 2006, Beasley was Ms. Brooks’s immediate supervisor. Ms. Brooks’s next level supervisor
was Angela McClintock, an Assistant Director at the Department. The third level supervisor was
Ms. Trish Muscolino, the Department’s Interim Director. (See Doc. 31-2, pp. 53-56, 58-70).
Sometime between 2006 and 2008, Ms. Denard replaced Beasley as Ms. Brooks’s immediate
supervisor.
4

On July 2, 2008, Ms. Denard issued an official reprimand to Ms. Brooks for
insubordination, failure to follow an order, disobedience, and failure to submit to
authority as shown by demeanor and words, and disruptive conduct. (Doc. 35-3,
pp. 4-5). According to the reprimand, Ms. Brooks refused to oversee a unit whose
supervisor was about to take maternity leave. The official reprimand reads:
You stated that you were not going to take this and that it felt very
derogatory. You stated that you would need to receive something in
writing before [overseeing the unit] and once you received something
in writing that you would discuss it with your attorney. You stated
that you did not care who this upset . . . You stated that the CAN
supervisors would not respond to my supervision and that there would
be a major uprising if this plan was put into place. . . . You stated that
there was no way that I was going to sell this to you.
...
Even though you did acknowledge your inappropriate reaction and
have begun to positively engage with the workers in the unit, it
remains that your initial behavior was not acceptable. It is an
expectation that as a program supervisor and a leader of the CAN
program area you should be able to receive directives in a constructive
and respectful manner. Your refusal to follow a directive unless
received in writing, and stating that you would have to talk to your
attorney first, is not acceptable professional behavior.
In addition, on June 11, 2008, Katie Walter informed JCDHR attorney
Diane Dunning that you had told her “they will try to make it look like
it is all your fault.” Ms. Walter was referring to a child death for
which the criminal trial in the death of this child is pending. This
behavior was unprofessional, inappropriate and unacceptable. Your
intentional behavior of undermining the management and
administration of this agency in this manner is insubordinate and
divisive.
(Doc. 35-3, pp. 4-5).
5

On July 27, 2008, Ms. Brooks submitted to Ms. Denard a memorandum
entitled “Rebuttal to Reprimand” regarding “Wrongful Administration of a
Personnel Action.” (Doc. 35-3, p. 10-11). Ms. Brooks stated the following in her
rebuttal:
Catherine Denard has encouraged and engaged in an open relationship
with me, in which, she has encouraged open and honest
communication with her. She has often injected humor in to
situations. What she failed to mention is that this was a playful
moment, in which, she laughed. She also failed to mention that the
directive was obey without anything in writing. Therefore, it does
not constitute insubordination.
....
Mrs. Denard asked Toney Hunter and I to be honest with her and tell
her what was our opinion on why the CA/N area was performing so
poorly. Initially, Mr. Hunter and I hesitated to respond. Mrs. Denard
continued to assure us she wanted honesty. Little did I know that
Mrs. Denard did not want honesty. I also did not know that Mrs.
Denard was an expert at what the politicians call “spin”. She took a
few words totally out of context, to retaliat[e] against me in this so
called farce of a reprimand.
....
Now, I can assure you that my younger counterpart has not received
any disciplinary action at this time or any prior time when it was
evident to all that his actions were out-of-compliance with personnel
policies and procedures. I can only assume that Catherine Denard has
singled me out as she has many others.
As to the remaining statements in the reprimand, I will not dignify
such lies with an answer.
(Doc. 35-3, pp. 10-11) (emphasis in original).

6

As a result of the July 2, 2008 reprimand, the Department deducted seven
points from Ms. Brooks’s responsibility score on her September 17, 2008
Employee Performance Appraisal. (Doc. 31-4, pp. 35-37). Ms. Denard and Ms.
McClintock signed the appraisal. (Id.).
EEOC Charge
On September 4, 2008, Ms. Brooks filed an EEOC charge of discrimination
against the Department. (Doc. 15-1). The document states:
I am a 55 year old individual that has filed a previous charge of
discrimination against the employer named above. On June 18, 2008,
I also protested the unlawful treatment of a co-worker based on her
race, Black and her age. On July 2, 2008, I was given a letter of
reprimand. My younger male counterpart who is guilty of the same
offenses for which I was reprimanded has not been reprimanded. This
younger male has not filed a previous charge of discrimination nor has
he protested unlawful employment practices at the work site. It is my
belief that the employer has established a pattern and practices of
unlawful employment discrimination against me.
I was informed that I was reprimanded due to insubordination and the
violation of various work rules.
I believe that I was discriminated against in violation of the Age
Discrimination in Employment Act of 1967, as amended and in
violation of Title VII of the 1964 Civil Rights Act, as amended
because of my sex and in retaliation for my previously filed charge of
discrimination as well as my recent protests.
(Id.). When completing the EEOC form, Ms. Brooks checked the boxes labeled
“Retaliation” and “Age” under the heading “Discrimination Based On.” (Id.).

7

On September 11, 2008, the EEOC issued a Notice of Charge of
Discrimination to Ms. Patricia D. Muscolino, Human Resources Director of the
Jefferson County Department of Human Resources. (Doc. 31-4, p. 38-40). The
notice stated that Ms. Brooks had filed a charge of employment discrimination
under Title VII of the Civil Rights Act and the Age Discrimination in Employment
Act.

The Notice instructed Ms. Muscolino to provide a statement of the

Department’s position with respect to Ms. Brooks’s charge. (Id.). On May 5,
2010, the EEOC issued a Dismissal and Notice of Rights, which stated:
Based upon its investigation, the EEOC is unable to conclude that the
information obtained establishes violations of the statutes. This does
not certify that the respondent is in compliance with the statutes. No
finding is made as to any other issues that might be construed as
having been raised by this charge.
(Doc. 15-1, p. 2).
Ms. Brooks filed this action on August 2, 2010.

She alleges that the

defendants violated Title VII, § 1981, § 1983, the ADEA, and the ADA. (Doc.
14).

Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the

defendants asked the Court to dismiss Ms. Brooks’s amended complaint for failure
to state a claim. (Doc. 15). After the parties briefed the motion, the presiding
judge, Chief Magistrate Judge Paul Greene, recommended that the district court
dismiss the following claims with prejudice:

8

(1)

all claims under Title VII and the ADEA asserted against
Defendants Buckner, Rice, and McClintock, whether sued in
their personal or official capacities;

(2)

the § 1981 and § 1983 claims against Defendant State of
Alabama DHR and Defendant Jefferson County DHR;

(3)

all ADA claims against all Moving Defendants, i.e., the State of
Alabama DHR, the Jefferson County DHR, Buckner, Rice, and
McClintock; and

(4)

the Title VII and ADEA claims against Defendant State of
Alabama DHR and defendant Jefferson County DHR to the
extent that they seek “punitive damages.”

(Doc. 18, p. 14).

The district court adopted Judge Greene’s Report and

Recommendation. (Doc. 19).4 The defendants conducted discovery on the balance
of Ms. Brooks’s claims.
Following discovery, the defendants filed a motion for summary judgment.
(Doc. 31). In support of the motion, the defendants submitted a brief and a
collection of evidentiary materials that includes affidavits, deposition testimony,
and unverified copies of some of Ms. Brooks’s employment records. (Docs. 31-1
th. 31-9). Ms. Brooks filed a brief in opposition to the defendants’ motion (Doc.
35) and submitted evidentiary materials, including unverified copies of some of her
employment records, unverified copies of EEOC charges that other Department
employees purportedly have filed, and unverified excerpts from the Department’s
4

Initially, Chief Magistrate Judge Paul Greene presided over this case. When he retired, the
Court re-assigned the case to the undersigned judge. (Doc. 38).
9

Disciplinary Action Status Report. (Docs. 35-1 th. 35-7).5 The defendants filed a
reply brief in support of their motion. (Doc. 37). The Court heard argument on the
motion on April 16, 2014.
On this record, the Court considers the defendants’ summary judgment
motion.

5

In support of her opposition to the defendants’ motion for summary judgment, Ms. Brooks
offered a number of documents that appear to be copies of her employment records. Although
she has not established the admissibility of these documents, the defendants have not suggested
that Ms. Brooks cannot present the material “in a form that would be admissible in evidence,”
and the Court finds that the material “could be reduced to admissible evidence at trial.” Fed. R.
Civ. P. 56(c)(2)(“A party may object that the material cited to support or dispute a fact cannot be
presented in a form that would be admissible in evidence.”); Macuba v. Deboer, 193 F.3d 1316,
1323 (11th Cir. 1999)(evidence may be considered on a motion for summary judgment “if the
statement could be ‘reduced to admissible evidence at trial.’”) (citations omitted); Jernigan v.
Dollar General Corp., 2013 WL 452820, at *8 (N.D. Ala. Jan. 31, 2013) (same). The defendants
included many of the same records in support of their motion for summary judgment. (See Doc.
31-4, pp. 26-47).
10

ANALYSIS
Ms. Brooks has not established a prima facie case of sex, age, or race
discrimination under the ADEA, Title VII, or § 1983. 6
A plaintiff may establish a claim of discrimination “through direct evidence,
circumstantial evidence, or through statistical proof.” Rioux v. City of Atlanta,
Ga., 520 F.3d 1269, 1274 (11th Cir. 2008). Ms. Brooks offers only circumstantial
evidence of discrimination,7 so the Court evaluates her claims through the burden
shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-05 (1973).
Under the McDonnell Douglas scheme, Ms. Brooks first has the burden to
establish with evidence a prima facie case of discrimination. McDonnell Douglas,
6

“[T]he express ‘action at law’ provided by § 1983 for the ‘deprivation of any rights, privileges,
or immunities secured by the Constitution and laws,’ provides the exclusive federal damages
remedy for the violation of the rights guaranteed by § 1981 when the claim is pressed against a
state actor.” Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735 (1989). Thus, Ms. Brooks may
not assert her § 1981 claims directly against state actors but must proceed under § 1983. See
Butts v. Cnty of Volusia, 222 F.3d 891 (11th Cir. 2000); Ebrahimi v. City of Huntsville Bd. of
Educ., 905 F. Supp. 993, 995-96 (N.D. Ala. 1995). Because § 1983 is the exclusive federal
damages remedy against a state actor for the violation of the rights guaranteed by § 1981, Ms.
Brooks has no claim for damages against the defendants in this case under § 1981. To the extent
that injunctive relief remains available to her under § 1981, it would duplicate the equitable relief
she may receive under § 1983. See Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th
Cir. 1991). Because Ms. Brooks pursues claims under § § 1981 and 1983 against the individual
defendants, the Court treats those claims as merged into one claim under § 1983.
7

Ms. Brooks provided no evidence of discriminatory remarks made by anyone at the
Department. Thus, her claims must be based on circumstantial evidence. Standard v. A.B.E.L.
Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998) (“Direct evidence is evidence that establishes
the existence of discriminatory intent behind the employment decision without any inference or
presumption.”); Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1227 (11th Cir. 2002)
(“[O]nly the most blatant remarks, whose intent could be nothing other than to discriminate on
the [protected classification] are direct evidence of discrimination.”) (internal quotations and
citation omitted).
11

411 U.S. at 802. Such evidence must be “adequate to create an inference that an
employment action was based on a[n] [illegal] discriminatory criterion.” Int’l Bhd.
of Teamsters v. United States, 431 U.S. 324, 358 (1977). If Ms. Brooks establishes
a prima facie case, then the Court presumes that her employer acted illegally unless
her employer articulates a legitimate, non-discriminatory reason for its action.
Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010). The
burden then shifts back to Ms. Brooks to produce evidence that shows that her
employer’s justification is a pretext for discrimination. Id.
To establish a prima facie case of discrimination, whether under the ADEA,
Title VII, or § 1983, Ms. Brooks must show that (1) she is a member of a protected
class, (2) she was subjected to an adverse employment action, (3) her employer
treated similarly situated employees outside the class more favorably, and (4) she
was qualified to do her job. Brooks v. CSX Transp., Inc., 2014 WL 480382, at *4
(11th Cir. Feb. 7, 2014).
Defendants do not dispute that Ms. Brooks has established that she is a
black female over the age of 40 who was qualified for the job she held at the
Department. Defendants contend, however, that Ms. Brooks cannot 1) prove that
she suffered an adverse action or 2) identify a similarly situated employee outside
the class that was treated more favorably than her. (Doc. 31, p. 13).

12

Adverse Employment Action
Defendants argue that because Ms. Brooks did not receive a reduction in pay
after the allegedly discriminatory reprimand on July 2, 2008, and subsequent
performance appraisal on September 17, 2008, but instead, received a pay raise,
she did not suffer an adverse employment action. (Doc. 31, pp. 13-14). In her
affidavit, Ms. Darlene Poole, Program Manager for the Jefferson County
Department of Human Resources, states that the July 2, 2008 reprimand produced
a seven point deduction on Ms. Brooks’s annual evaluation. (Doc. 31-8, p. 2). As
a result, Ms. Brooks’s overall score fell from 31.1 (Exceeds Standards) to 24.1
(Meets Standards), qualifying Ms. Brooks for a one-step salary increase rather than
a two-step salary increase. “Therefore, her reprimand did lower her annual raise
amount . . . .” (Id.).
The Eleventh Circuit has held that a decrease in a pay raise is an adverse
employment action. In Gillis v. Georgia Department of Corrections, the plaintiff
received a “met expectations” performance evaluation, which entitled her to a three
percent raise, rather than an “exceeded expectations” evaluation, which would
have entitled her to a five percent raise. 400 F.3d 883, 884-85 (11th Cir. 2005).
The district court concluded that because Gillis received a pay raise, even though it
was a smaller raise than she would have received had her performance evaluation
been more favorable, she did not suffer an adverse employment action. The
13

Eleventh Circuit reversed the district court and held that a poor performance
evaluation that directly results in the denial of a pay raise affects an employee’s
compensation and thus constitutes an adverse employment action under Title VII.
Id. at 888. Therefore, the Court concludes that Ms. Brooks has produced sufficient
evidence of an adverse employment action to establish a prima facie case of
discrimination; however, more is required before the burden shifts to the
defendants. 8
Similarly Situated Employee Outside the Class
To establish a prima facie case for discrimination, Ms. Brooks must identify
a similarly situated employee who is not a member of Ms. Brooks’s class who the
Department treated more favorably than her. The United States Supreme Court has
recognized that even if a plaintiff is guilty of misconduct for which her employer
might legitimately discipline her, the plaintiff may establish a claim of unlawful
discrimination if her employer treated other employees outside of her protected
class more favorably when the comparator employees engaged in the same
misconduct. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 282-83
(1976). The comparators must be similarly situated to the plaintiff “in all relevant
respects,” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997), to “prevent
8

Ms. Brooks claims that she was denied basic support, denied earned leave, removed from the
promotional register for Program Manager, and harassed. (Doc. 35, p. 4-5). To the extent that
Ms. Brooks argues that those incidents constitute adverse employment actions, she has failed to
provide sufficient factual support for such claims.
14

courts from second-guessing employers’ reasonable decisions.”

McCann v.

Tillman, 526 F.3d 1370, 1373 (11th Cir. 2008) (quotation marks omitted). “The
most important factors in disciplinary context are the nature of the offenses
committed and the nature of the punishment imposed.” Maynard v. Board of
Regents of Div. of Univ. of Fla. Dep't of Educ., 342 F.3d 1281, 1289 (11th Cir.
2003) (quotation omitted).
Ms. Brooks contends that Toney Hunter is a similarly situated employee
who the Department treated more favorably than her. Mr. Hunter is a black male
employee who is under the age of 40, so he potentially may serve as a comparator
for purposes of Ms. Brooks’s age and gender discrimination claims. (Doc. 31-3, p.
147).9 Ms. Brooks testified in her deposition that she and Mr. Hunter held the
exact same position. (Doc. 31-2, p. 99). According to Ms. Brooks, Mr. Hunter
engaged in insubordinate behavior, but Department management did not discipline
him. When asked how frequently Mr. Hunter criticized management, Ms. Brooks
responded, “a lot,” but she offered only one specific example of insubordinate
conduct.

She testified that Mr. Hunter “walked out of supervisors meetings

because he was mad.” (Doc. 31-3, p. 119). Ms. Brooks testified that “not only
myself, but other people have heard Toney directly say that he wasn’t going to do
something,” (Doc. 31-2, p. 99-100), but Ms. Brooks could not remember when
9

Because Mr. Hunter is African-American, he may not serve as a comparator for purposes of
Ms. Brooks’s race discrimination claim.
15

these events occurred. (Doc. 31-3, pp. 120-121). When asked if she could be
more specific regarding her allegation that Mr. Hunter openly criticized
Department management and procedures, she replied “No.” (Doc. 31-3, p. 115).
Ms. Brooks acknowledged that she had never seen Mr. Hunter’s personnel
file, but she believes she would know if he had been subject to any type of adverse
job action because Mr. Hunter confided in her. (Doc. 31-2, p. 100). Ms. Brooks
introduced Department records that indicate that on September 4, 2008, Ms.
Denard issued a warning to Mr. Hunter for “Failure to perf/Safety.” (Doc. 35-6, p.
4). The records are excerpts from a “Jefferson County DHR Disciplinary Action
Status Report.” The report lists, among other things, the name and division of each
employee who is disciplined, the name of the employee’s supervisor, the type of
disciplinary action taken, and the type of violation.

(Doc. 35-6).

The chart

distinguishes between “Failure to perf/Safety” violations and “Failure to
perf/Insub” violations. The report does not provide details about the incidents
giving rise to the disciplinary action.
Besides Mr. Hunter’s alleged similar conduct for which he purportedly was
not disciplined, Ms. Brooks contends that Mr. Hunter’s work conditions generally
were more favorable than hers. She explained that when Mr. Hunter “complained
that he didn’t want to supervise Meredith,” Mr. Hunter’s work was “dumped on
me.” (Doc. 31-3, p. 116). Ms. Brooks admitted that she was not present when Mr.
16

Hunter purportedly refused to manage one of his units, but “he told me.” (Doc. 313, p. 118). When asked why Mr. Hunter did not want to supervise one of his units,
Ms. Brooks testified that “there had been a child death, and . . . he was the
supervisor during that time.” (Doc. 31-3, p. 116).
Ms. Brooks’s general allegations of inequitable treatment do not establish
that Mr. Hunter’s conduct was “nearly identical” to the conduct for which Ms.
Denard reprimanded Ms. Brooks. On the record before the Court, Ms. Brooks has
not carried her burden to demonstrate that she is similarly situated to Hunter in all
relevant respects. McCann, 526 F.3d at 1373. Consequently, as a matter of law,
she has not established a prima facie case of discrimination. 10
Ms. Brooks has not established a prima facie case for a hostile work
environment claim.
In her opposition brief, Ms. Brooks argues that she was “subjected to the
creation of and exposure to a hostile work place” and was “abused and tormented
on the job,” which “caused her to retire involuntarily.” (Doc. 35, pp. 4-5 & 18).
To the extent that Ms. Brooks brings a separate claim for hostile work
environment, she must “show harassing behavior sufficiently severe or pervasive

10

In her opposition brief, Ms. Brooks identifies Ms. Carla Emmons as another comparator, (Doc.
35, p. 18), but Ms. Brooks provides very little evidence regarding Ms. Emmons and her
employment record. Ms. Brooks has shown only that Ms. Emmons is a program supervisor who,
on October 12, 2011, was charged with failure to perform her job, safety violations, and
insubordination. (Doc. 35-6, p. 1). The record contains no information about Ms. Emmons’s
age or race or the conduct that led to disciplinary action.
17

to alter the conditions of [her] employment.” Bryant v. Jones, 575 F.3d 1281, 1296
(11th Cir. 2009) (quotation omitted); see also Kelly v. Dun & Bradstreet, Inc.,
2014 WL 747235, at *3 (11th Cir. Feb. 27, 2014) (in hostile workplace action,
plaintiff must demonstrate that “the workplace is permeated with discriminatory
intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working environment
. . . .”) (internal quotations omitted).

The environment must be one “that a

reasonable person would find hostile or abusive.” Id. “[D]iscrete acts . . . cannot
alone form the basis of a hostile-work-environment claim.” Id.
When asked in her deposition what she meant by “the creation of and
exposure to a hostile workplace,” Ms. Brooks testified that she received,
“[c]onstant scrutiny for things that . . . Toney could do that I couldn’t do,” like
“asking for reports.” (Doc. 31-3, p. 144). She added, “if a report was not even due
or if it was a report that I didn’t normally have to do and there was a crunch time
for everybody above me, I would routinely have to do extra work that was really
not a part of my job description in order for the powers [that] be to get information
to Montgomery.” (Id.). Ms. Brooks commented that this type of “scrutiny” was
“understandable.” (Id.).
Ms. Brooks also testified that she received “very nasty” emails from Ms.
McClintock. (Doc. 31-3, p. 130). Ms. Brooks explained that by “nasty” she meant
18

that “they were e-mails that discussed what her expectations were,” which Ms.
Brooks found to be “derogatory in nature” and “demeaning, talking down to.” (Id.
at 131). Ms. Brooks nevertheless agreed that Ms. McClintock had the right to have
expectations regarding individuals who worked for the Department. (Doc. 31-3, p.
131). Ms. Brooks could not recall other examples of harassment. (Id. at 132).
Ms. Brooks falls short of establishing a prima facie case for her hostile work
environment claim. The evidence that she offers does not convey a pervasively
harassing work environment that a reasonable person would find hostile or
abusive.
Ms. Brooks has not established a prima facie case of retaliation under the
ADEA, Title VII, or § 1983.
As with Ms. Brooks’s claim for discrimination, when, as here, the record
contains no direct evidence of retaliation, the Court must employ the McDonnell
Douglas analytical framework to analyze a retaliation claim. Bryant, 575 F.3d at
1307. Under either the ADEA, Title VII, or § 1983, to establish a prima facie case
of retaliation, Ms. Brooks must show that: (1) she engaged in a statutorily
protected expression; (2) she suffered an adverse employment action; and (3) the
adverse action was causally related to the protected expression. Weeks v. Harden
Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002). Defendants argue that Ms.
Brooks has not established that she suffered an adverse employment action or
engaged in statutorily protected expression. (Doc. 31, pp. 13-14). The Court
19

already has concluded that Ms. Brooks established that she suffered an adverse
employment action; 11 however, the Court finds that Ms. Brooks has not
demonstrated that she engaged in statutorily protected expression.
“Statutorily

protected

expression

includes

internal

complaints

of

discrimination to superiors, as well as complaints lodged with the EEOC and
discrimination-based lawsuits.” Gerard v. Board of Regents of State of Ga., 324
Fed. Appx. 818, 825 (11th Cir. 2009) (citing Pipkins v. City of Temple Terrace,
Fla., 267 F.3d 1197, 1201 (11th Cir. 2001)). To establish that she participated in a
protected activity, Ms. Brooks must show “a subjective belief that her employer
was engaged in unlawful employment practices and that her belief was objectively
reasonable in light of the facts and record presented.” Saffold v. Special Counsel,
Inc., 147 Fed. Appx. 949, 951 (11th Cir. 2005) (quotation omitted).
Ms. Brooks asserts that the defendants retaliated against her after she
protested about the Department’s discriminatory treatment of a co-worker based on
the co-worker’s race, sex, and age.

(Doc. 35, p. 3).

The record does not

demonstrate that Ms. Brooks ever voiced a complaint of race, sex, or age
discrimination to anyone in the Department. Ms. Brooks testified that on June 18,
2008, Ms. Denard told her that Ms. McClintock “wanted Margaret Moore written

11

The standard for what constitutes an adverse employment action in retaliation cases is different
from the standard used in discrimination cases. See Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53 (2006). Ms. Brooks’s partial pay raise satisfies both standards.
20

up.” (Doc. 31-3, p. 88). Ms. Brooks refused to discipline Ms. Moore because as
Ms. Moore’s direct supervisor, Ms. Brooks’s believed that “Margaret’s work was
fine.” (Id.). According to Ms. Brooks, Ms. Denard and Ms. McClintock wanted to
write up Ms. Moore for “arbitrary reasons” that “had nothing to do with her work.”
(Doc. 31-3, p. 89). Ms. Brooks testified that she knew “it was an illegal write-up”
and that she “told Catherine that the write-up was illegal” because “according to
personnel policies, you cannot write a person up for something they did not do.”
(Doc. 31-3, p. 91). Ms. Brooks testified that she told Ms. Denard that the write-up
concerned something that had not happened in her presence, and Ms. Denard
replied, “okay. Well, let’s just go to Angela’s office.” (Doc. 31-3, p. 92). When
asked about her refusal to participate in Ms. Moore’s write-up, Ms. Brooks
testified:
It was sprung on me, okay, first of all. According . . . to the State of
Alabama personnel policies . . . a person is supposed to know what
kind of disciplinary action they’re going to receive. And Catherine . .
. came to my office and said we need to write Margaret up. I said to
Catherine that the incident that you’re referring to – and I can’t
remember what it was offhand – Catherine, you saw that directly. I
said, I’m very uncomfortable with this. And if I remember correctly –
and I’m pretty sure that I do because Catherine was very cooperative
with me. . . . [W]e had a good relationship. And so I said, you’re
writing her up for something that you said happened when I was not
here, and it would be discriminatory, in my opinion, because I’ve
never had a problem with Margaret. And so she said, okay, let’s walk
down to Angela’s office. It wasn’t a refusal to do anything. We were
going to discuss it further in Angela’s office.
(Doc. 31-3, pp. 95-97).
21

At no point in her testimony does Ms. Brooks state that she told Ms. Denard
that she believed Ms. Moore was being disciplined because she was AfricanAmerican or female or over the age of 40. When asked in her deposition how the
write up had anything to do with race, Ms. Brooks responded:
Margaret is black. Catherine is white. Margaret was over 40.
Catherine was under 40. And Margaret has been denied a series of
promotions and was one of the most highly qualified people to ever
work for Jefferson County DHR, had a stellar work – impeccable
work record. Margaret always got written up right before somebody
was going to be promoted to director.
(Doc. 31-2, p. 93). When asked whether Catherine or Angela ever cited Ms.
Moore’s race as the reason for treating her differently, Ms. Brooks responded that
“I don’t know that I can answer that. Not because I don’t know, but I’m not going
to be subjective. . . . They wouldn’t have said it to me directly because they’re both
white. . . . I didn’t hear anything, but I heard rumors.” (Doc. 31-2, p. 94).
Because the record contains no evidence that Ms. Brooks used the term
“race” or referred to Ms. Moore’s race when refusing to discipline Ms. Moore, Ms.
Brooks has not established a prima facie case of retaliation. Brown v. City of
Opelika, 211 Fed. Appx. 862, 864 (11th Cir. 2006) (affirming summary judgment
for defendant where record contained no evidence that the plaintiff engaged in a
protected expression when she “admitted that she never mentioned the word ‘race’
when she complained about Kirby’s behavior, that she had no knowledge of Kirby

22

making any racially derogatory comments, and that Kirby took out her anger on
everyone, including the white office assistant.”).
CONCLUSION
As the Eleventh Circuit held in Chapman v. AI Transport, 229 F.3d 1012
(11th Cir. 2000):
Some of our opinions from past years purport to announce as a
general rule that summary judgment is not a proper vehicle for
resolving claims of employment discrimination which often turn on an
employer’s motivation and intent. There is some question about
whether that supposed rule was ever followed, but no question that it
has not been followed in recent years. . . . . While acknowledging that
questions of fact in job discrimination cases are both sensitive and
difficult and there will seldom be eyewitness testimony as to the
employer’s mental processes, the Supreme Court has told us that
“none of this means that trial courts or reviewing courts should treat
discrimination differently from other ultimate questions of fact.” St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 524 (1993). . . . The long
and short of it is that the summary judgment rule applies in job
discrimination cases just as in other cases. No thumb is to be placed
on either side of the scale.
Id. at 1025-26 (citations, brackets, and quotations omitted). The Court has viewed
the evidence in the light most favorable to Ms. Brooks, and it finds that even if one
or more of the defendants treated her unfairly, she has not presented sufficient
evidence of discriminatory motive to overcome the defendants’ summary judgment
motion. Therefore, the Court GRANTS summary judgment in favor of the

23

defendants on all of Ms. Brooks’s claims. The Court will enter a separate order
consistent with this memorandum opinion dismissing the action with prejudice. 12
DONE and ORDERED this 30th day of April, 2014.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

12

The defendants raise several defenses related to qualified and sovereign immunity and the
scope of Ms. Brooks’s EEOC charge. Because the Court grants the defendants’ motion on
grounds stated above, it does not reach the merits of the defendants’ affirmative defenses.
24