Wilson v. The Birmingham Public Library Foundation et al

Filing 27

STATUS REPORT (Unilateral) by Birmingham Library Board, City of Birmingham, Alabama, The. (Fullerton, Frederic)

FILED
2011 Jun-17 AM 07:02
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BARBARA ANN WILSON,
Plaintiff,
v.
CITY OF BIRMINGHAM, et al.,
Defendants.

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CIVIL ACTION NO.
CV-10-KOB-2386

PARTIES’ JOINT STATUS REPORT

Pursuant to the Court’s Scheduling Order of December 7, 2010 and Order of June 2,
2011, the parties submit the following status report.1
1.

Nature of the Case
From the Plaintiff, Barbara Wilson:
Unknown
From Defendants, the City of Birmingham and Birmingham Library Board:

The Defendants deny each and every material allegation of the plaintiff’s complaint
and demands strict proof thereof.
The Defendants would plead that the Plaintiff has violated the Birmingham Library
policies. The Defendants have an anti-sex discrimination/hostile work environment
policy which is enforced and all employees are required to comply.

1 Defendants’ counsel on Thursday, June 9, 2011 forwarded via email a draft Parties Joint Status
Report to Plaintiff’s counsel. Plaintiff’s counsel has never responded to email. Defendants’ counsel
will be out of the office in a hearing on Friday June 17 and in Court ordered mediation on Monday,
June 20. Thus, Defendants’ counsel will not be able communicate with Plaintiff’s counsel to resolve
this matter. Defendants’ counsel files this report unilaterally in order to timely comply with the
Court’s order.
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The claims of the Plaintiff are untrue and the Defendant is not guilty. The Plaintiff
does not work in a sexually hostile environment.
The Defendants have policy, practices and technology in place to regulate the access
of the public to obscene and/or pornographic materials.
The Defendants have security guards in place to regulate the behavior of patrons
entering the library facilities.
The Defendant asserts the statute of limitations as to claims arising under 42 U.S.C
2000 which occurred prior to 180 days prior to filing the her EEOC charge.
The Complaint fails to state a claim upon which relief may be granted under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. 2000 and Civil Rights Act of 1991.
The Board denies that it violated any provisions of Title VII of the Civil Rights Act of
1964, 42 U.S.C. 2000 and Civil Rights Act of 1991.
The Plaintiff cannot prove a hostile work environment as she cannot show: (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. Civil Rights Act of 1964, § 703(a)(1), 42 U.S.C.A. § 2000e2(a)(1).
Plaintiff’s “subjective perception” to the harassment as sufficiently severe and
pervasive to alter the terms or conditions of employment is not objectively reasonable. Civil
Rights Act of 1964, § 703(a)(1), 42 U.S.C.A. § 2000e-2(a)(1).
Plaintiff’s encounters to general vulgarity or references to sex that are indiscriminate
in nature are not actionable. Civil Rights Act of 1964, § 703(a)(1), 42 U.S.C.A. § 2000e2(a)(1).
The Defendants are immune from the imposition of punitive damages for an alleged
violation of Constitutional rights. Punitive damages are barred against the City by the
provisions of Code of Alabama §6-11-26, 1975, City of Newport v. Facts Concerts, 453 U.S.
247, 101 S. Ct. 2748 (1981).

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The Defendants pleads all remaining defenses, including state law claims, as outlined
in their answers.
2.

Current Status
Discovery is open per scheduling order. Discovery ends July 1, 2011. Summary

judgment is due July 22, 2011. Case set for Pretrial on October 28, 2011.
3.

Pending Motions
None.

4.

Current or Anticipated Problems in Preparing for Trial
The parties anticipate no problems in preparing for trial. The parties will file a timely

motion if needed.
5.

Settlement Efforts & Prospects
The Parties have not discussed any settlement offers. Settlement thus at this point

appears unlikely.
6.

Mediation
The parties do not believe that mediation would be productive and request that the

case not be submitted to mediation.
Dated: June 17, 2011
Respectfully submitted,
____________________
Adam P. Morel, Esq.
517 Beacon Parkway West
Birmingham, AL. 35209
Attorneys for Plaintiff
/s/Fredric L. Fullerton, II
Fredric L. Fullerton, II
Assistant City Attorney

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City of Birmingham Law Department
600 City Hall, 710 North 20th Street
Birmingham, Alabama 35203
[phone]/[phone] FAX

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