Wilson v. The Birmingham Public Library Foundation et al

Filing 36

RESPONSE in Opposition re 31 MOTION for Summary Judgment filed by Barbara Ann Wilson. (Morel, Adam)

FILED
2011 Aug-17 PM 08:05
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BARBARA ANN WILSON,

Plaintiff,
v.
THE CITY OF BIRMINGHAM;
et al.,

Defendants.

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2:10-cv-02386-KOB

PLAINTIFF’S RESPONSE IN OPPOSITION TO
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Adam P. Morel, Esq.
ATTORNEY FOR THE PLAINTIFF

OF COUNSEL:
LAW OFFICES OF ADAM MOREL, P.C.
517 Beacon Parkway West
Birmingham, AL 35209
Telephone: [phone]
Facsimile: [phone]

TABLE OF CONTENTS
TABLE OF CONTENTS.....................................................................................2
RESPONSE TO DEFENDANT’S STATEMENT OF FACTS...........................3
UNDISPUTED FACTS........................................................................................5
ARGUMENT......................................................................................................31
CONCLUSION...................................................................................................43
CERTIFICATE OF SERVICE...........................................................................44

2

The Plaintiff submits this response in opposition to the Defendant’s Motion for
Summary Judgment. For the reasons set forth, the Motion should be denied.
RESPONSE TO DEFENDANT’S STATEMENT OF FACTS
The Plaintiff (hereinafter “Ms. Wilson”) disputes or makes clarification of the
following facts cited by the Defendants:
7.

Admitted with clarification.

The Birmingham Library Board has

admitted it is an entity created pursuant to Birmingham City Code
Section 2-5-71, et al. and subject to suit in this Court. (Answer of
Defendant Birmingham Library Board to Amended Complaint)
9.

Admitted in part, denied in part, with clarification. Ms. Wilson also
alleges that she has been personally subjected to various sexually
hostile acts by patrons because of her sex, including sexually
impermissible touching, comments and gestures.

(Complaint,

paragraphs 18-20; Affidavit of Barbara Wilson; EEOC Charge)
10.

Denied. Ms. Wilson alleges the Defendants, through their respective
management and security personnel’s failure to adequately address the
situation, created and/or allowed an unlawful sexually hostile work
environment to exist. (Complaint; Wilson Affidavit; Wilson Depo., p.

3

39-41, 50, 52, 53, 54, 58, 60-61, 63)
11.

Denied. Ms. Wilson alleges she was in a hostile sexual environment
based on more than three reported incidents. For instance, she testified
she would make written reports “On occasion, but not – if I wrote a
report each time it happened...I wouldn’t have time to work.”

Ms.

Wilson alleges dozens of occasions when sexually hostile actions of
various types were directed toward her. (Complaint; Wilson Affidavit;
Wilson Depo., p. 63; See also paragraphs 15-25, below)
14.

Denied.

Ms. Wilson has testified, “Patrons are allowed to look at

whatever they would like. If they wanted to override a particular
website, like with chat or whatever, if they request it, we are to override
[the internet policy].” (Wilson Depo., p. 39-40)
15.

Clarification provided. The library has used filtration software in an
unsuccessful attempt to stop access to such web sites. (Wilson Depo., p.
36, 39-40, 63; EEOC Charge)

16.

Clarification provided. The library has never had a camera on the third
floor (where Ms. Wilson worked) able to photograph or record the area
where the computers are located. (Lee Depo., p. 22)

4

UNDISPUTED FACTS
Ms. Wilson’s Employment
1.

The Birmingham Public Library Board (hereinafter “the Board”) is a
legal entity created pursuant to Birmingham City Code Section 2-5-71,
et al. and subject to suit in this Court. (Answer of Defendant
Birmingham Library Board to Amended Complaint)

2.

The City of Birmingham (hereinafter “the City”) owns the assets of the
library. (Blaylock Depo., p. 41)

3.

The Board controls the assets and operates the downtown branch of the
library. (Id.;

Answer of Defendant Birmingham Library Board to

Amended Complaint)
4.

The City of Birmingham pays Ms. Wilson for her work at the library and
provides all benefits. (Blaylock at 46-47.)

5.

The City of Birmingham handles FMLA and Workers Compensation
matters for Ms. Wilson and other employees working at the library. (Id.
at 48)

6.

According to the Board, it employs Ms. Wilson. (Answer of Defendant
Birmingham Library Board to Amended Complaint)

7.

The funding for operation of the library comes from the City of
5

Birmingham. (Blaylock at 40)
8.

Ms Wilson is subject to the rules and policies set forth in the Employee
Handbook/Personnel Handbook for the City of Birmingham. (Lollar
Depo., p. 20-21)

9.

Ms. Wilson is subject to the City of Birmingham’s Safety Rules. (Id. at
21)

10.

The City of Birmingham keeps a personnel file on Ms. Wilson. (Id. at
23)

11.

The Board has the statutory authority “to provide rules and regulations
for its own governance, [and] the governance of its officials and
employees....” (Birmingham City Code Section 2-5-73)

12.

Ms. Wilson has testified she is employed by both the City and the
library. (Wilson at 103)

13.

Library Director Irene Blaylock, the Board’s corporate representative in
this case, agrees that both the City of Birmingham and the Board have
a duty to protect Ms. Wilson from a sexually hostile work environment.
(Blaylock at 49-50)

14.

Regarding what Ms. Wilson and other employees should have to deal
with, Director Blaylock testified “....the last thing we wanted was for our
6

staff to have to be confronted by really unpleasant stuff....Whether it’s
legal or not, it’s not – you know, that’s not our standard.” (Blaylock at
92)
The Frequency of Sexually Hostile Actions
15.

During the course of her employment by the City and the Board, Ms.
Wilson has been subjected to numerous unwelcome, offensive sexually
charged acts by library patrons. (Wilson Affidavit, para. 2 ; EEOC
Charge; Wilson Depo., p. 36, 63, 68-92)

16.

The first time Ms. Wilson was subjected to unwelcome, offensive
sexually charged conduct by a patron while at work was in the fall of
2002, shortly after she began working at the library. (Wilson Affidavit,
para. 30) During the first several years she worked at the library,
patrons made sexual comments about her body such as “You have some
big titties,” “You have a nice ass” and “Look at you just shaking that
ass.” (Id.) Patrons also looked at pornography on the computers on a
daily basis. (Id.) She was also required to print pornographic pictures
at the request of patrons and when she complained to her department
head, she was told “If they pay for the printing, you have to print it.”
(Id.)
7

17.

During the 180 day period from April 10, 2009, until she filed her
EEOC Charge on October 7, 2009, Ms. Wilson was subjected to
unwelcome and offensive, sexually charged comments, touchings or
gestures by library patrons while at work many times. (Id., para. 4) She
was subjected to pornography on computers on a daily basis. (Id.) She
was subjected to patrons fondling or masturbating their genitals on at
least two occasions. (Id.) Patrons made advances on her, asking her out
on dates dozens of times. (Id.) She had one patron rub up against her
buttocks with his erect penis. (Id.) Other patrons would come in and
stare at her. (Id.)

18.

After she filed her EEOC Charge, Ms. Wilson continued to be subjected
to unwelcome, offensive sexually charged conduct by patrons, right up
until she had to leave work because of how it affected her in late
November, 2010. (Id., para. 5) She continued to be subjected to
pornography on the computers on a daily basis. (Id.) She also was
asked out by patrons on a regular basis. (Id.) One patron made
comments about how nice her body was and then asked her out. (Id.)
When she declined, he grabbed Ms. Wilson’s hand and tried to hold her
so that she could not move. (Id.) One patron came in almost every day
8

for several months and sat at a desk near her desk and stared at her. (Id.)
He had been kicked out one day and then returned the very next day.
(Id.) He also followed Ms. Wilson from floor to floor. (Id.) On one
occasion, a patron told Ms. Wilson “You have pretty lips.” (Id.)
Another told her “I want to paint your face” with a nasty look on his
face. (Id.) In approximately June of 2010, a patron turned in his laptop
to Ms. Wilson which still had pornographic images on the monitor.
(Id.) He stood there and stared at Ms. Wilson as she looked at the
laptop, even after she gave him his ID back. (Id.)
Comments and Advances Aside, The Pornography on Computers Was
Also Directed at Ms. Wilson due to her Gender
19.

On dozens of occasions, Ms. Wilson observed patrons who saw that she
had seen pornographic pictures or video on the computers they were
using. (Id., para. 6) In those instances, she regularly observed the
patrons make eye contact with her, smile, and stare at her while
continuing to look at the pornography. (Id.) It was clear to Ms. Wilson,
those patrons enjoyed making her uncomfortable. (Id.)

20.

As far as Ms. Wilson can remember with one exception, the
pornographic sites which were accessed by male patrons in her presence

9

depicted only heterosexual sexual acts or nude pictures of females
without depictions of males. (Id., para. 7) They did not include pictures
or videos depicting males without females. (Id.) They included sites
such as “watchmygf.com” and “teensexmania.com,” among many
others. (Id.; Ex. 28, Blaylock Depo.)
21.

Ms. Wilson has observed and made eye contact with patrons who saw
that she had seen them masturbating or fondling their genitals. (Id.,
para. 8) In those instances, she observed the patrons make eye contact
with her, smile, and stare at her while continuing to fondle themselves.
(Id.)

22.

Twenty or more times, male patrons have leered at Ms. Wilson and
followed her around the library. (Id., para. 9) Several different patrons
did this. (Id.) One in particular kept doing this during Ms. Wilson’s last
year at the library. (Id.) He would say things like “When are we going
to go out?” “Are you going to marry me?” and “Stop calling me a manwhore.” (Id.)

23.

All of the sexually charged acts directed at Ms. Wilson or to which she
was exposed during her employment were perpetrated by males. (Id.,
para. 10)
10

24.

For most of her career, Ms. Wilson worked on the third floor of the
downtown library eight hours a day, five days a week. (Id., para. 11)
She never saw a patron continue to view pornography or masturbate
after being caught engaging in that conduct by her male co-employees.
(Id.)

25.

Ms. Wilson has never seen any patron ask one of her male co-workers
for a date, say sexually explicit things about their bodies, follow them
around the library or touch them in any manner, let alone in the vicinity
of their chest, buttocks or genitals. (Id., para. 12)

Ms. Wilson Reported the Sexual Harassment
26.

Ms. Wilson verbally reported or complained about sexual misconduct
directed at her or done in her presence to her Department Head, Barbara
Clotfelter. (Clotfelter Depo., p. 21)

27.

In addition to verbal reports, Ms. Wilson also made multiple written
reports of sexual misconduct directed toward her. (Id. at 18-19; Blaylock
at 263; Wilson at 72-73)1

28.

Ms. Wilson’s written reports were made as early as January of 2007.

1

In July of 2008, Ms. Wilson had also provided a written report of a male patron exposing
himself to a female patron. (Wilson at 68, 70-71.)
11

(Blaylock Depo., p. 223)
29.

In one report, Ms. Wilson notified library management in January of
2010 that she was concerned about her safety due to one patron who sat
across the desk from her for over five months staring at her. She further
reported the patron had been escorted out of the library for sexual
harassment once and the following day he was back in the library.
(Blaylock at 236-237)

30.

Ms. Wilson also notified library security personnel “as she should.”
(Clotfelter at 19)

31.

According to Ms. Clotfelter, a 29 year employee and Department Head
for 21 years, Ms. Wilson always reported sexual misconduct the way she
was supposed to. (Id., at 21)

32.

Ms. Wilson also reported sexual harassment in a face to face meeting
with Library Director Irene Blaylock and Library Personnel Director
Edith Major. (Blaylock Depo., p. 58-59)

33.

Ms. Wilson also reported sexual harassment in a face to face meeting
with then-Associate Director Pam Lyons. (Id. at 61-62)

34.

Director Blaylock admits that Ms. Wilson complained of sexual
misconduct in the library for a long time prior to filing her EEOC
12

Charge. (Blaylock at 135)
35.

Library Associate Director Angela Hall concedes library management
had “a body of complaints...maybe ten in a year” from various people
regarding patrons using library computers to view sexually inappropriate
images. (Hall Depo., p. 89-90)

Library Management Admits Ms. Wilson’s Allegations of Sexual
Misconduct are True
36.

Associate Director and second in command Angela Hall, testified as
follows:
Q.

When asked under oath, “So when Ms. Wilson and Ms. Jackson
say that there’s ongoing continuous sexual misconduct in the
form of either looking at pornography by patrons on computers or
at other times, masturbation or other types of aggressive behavior
like following them around, those kinds of things, when they say
that’s happening all the time, your testimony is you agree that the
library is doing everything it can to try to address it, is that fair?

A.

I agree that it is happening to them.

(Hall Depo at. 52-53)
37.

Hall further testified, “What is happening to them is not made up, is
happening to them.” (Hall at 52)

38.

Regional Coordinator and former Public Service Coordinator and third
in command at the downtown library Sandra Lee testified that she is
13

familiar with the allegations Ms. Wilson is making in this lawsuit.
When asked, “in terms of the things she says were going on in the
library, you’re not disputing that they went on the way she describes
them, correct?” she testified “No. It’s true I’m not disputing them.” (S.
Lee Depo., p. 43-44)
39.

Ms. Clotfelter told management in writing “We have many repeat
offenders in the building every day. Why can’t we get them gone?”
(Clotfelter at 65)

40.

When asked whether and when she should have been made aware of one
of Ms. Wilson’s written complaints regarding a patron who tried to rub
up against her and then followed her, Director Blaylock responded “This
is the kind of thing that happens in a public library all the time.”
(Blaylock at 204)2

Management’s Response to Ms. Wilson
41.

Ms. Clotfelter has testified under oath that, in a discussion about another
incident reported by Ms. Wilson between herself, Ms. Wilson and Ms.
Blaylock, Ms. Blaylock stated in Ms. Wilson’s presence, “If you don’t

2

Blaylock then changed her testimony, stating an incident in which the same man did the
same thing three times should have been “put out” and that kind of thing does not happen all the
time.” (Blaylock at 204)
14

like it, leave.” (Clotfelter at 43, 45-48)3
42.

Ms. Lee also testified she has heard Director Blaylock tell employees “If
you don’t like it leave” more than three or four times when the topic was
sexual misconduct. (S. Lee at 46-48)

43.

Ms. Clotfelter further testified that Ms. Lee has also said to Ms. Wilson
and other employees who had complaints about sexual misconduct or
other patron behavior in the library “If you don’t like it leave.”
(Clotfelter at 36.)

44.

The prior Director, Ms. Sirmans also told employees “If you don’t like
it leave.” (Clotfelter at 35) According to Ms. Lee, Sirmans said this on
more than half a dozen occasions. (S. Lee at 47)

Did the Defendant’s Adequately Address the Problem?
45.

Since November of 2008, Edith Major has been the Board’s chief
Personnel Officer and highest ranking Human Resources Officer.
(Major Depo., p. 7-8, 13)

46.

Among other things4 , Ms. Major is responsible for compliance with EEO

3

When asked about the statement, Ms. Blaylock testified “I have no idea who said that. It
wasn’t me. I can tell you that.” (Blaylock at 179-180)
4

Ms. Major is also responsible for personnel needs, payroll, and interpretation of policies
and procedures. (Major at 7-8)
15

issues for the entire Birmingham Library System which has over 280
employees spread across 17 branches around Birmingham. (Major at
7-8, 12, 24)
47.

Ms. Major is also responsible for making sure complaints of sexual
harassment are properly addressed. (Major at 23)

48.

Other than a few days in the past year, she has been the only person in
the Human Resources Department and she has never had more than one
other person to assist her. (Major at 10-11)

49.

Ms. Major does not believe the Human Resources Department has been
provided with the resources it needs to actually do the job that needs to
be done. (Id. at 26)

50.

Ms. Major was never made aware of any of the verbal or written
complaints of sexual misconduct made by Ms. Wilson prior to October
of 2009 when she filed her EEOC Charge. (Major at 13-14)

51.

Although she expects to be brought into the loop when an employee is
alleging sexual misconduct at work, she never was until after Ms.
Wilson filed her charge in October 2009. (Major at 15)

52.

Ms. Major has never conducted an investigation of any of Ms. Wilson’s
claims of sexual misconduct in the library. (Id. at 17) She testifies, she
16

should have investigated the complaints, had she known about them.
(Id..)
53.

Ms. Major has testified one of the ways the library is obligated to
address issues of sexual misconduct is through the actions of the
Security Department. (Id. at 24)

54.

Ms. Major admits she has had a romantic relationship with Mike Lee,
the Chief of Security, from 2008 through the present.

55.

Ms. Clotfelter has testified that there were times when there were not
many security guards around and that “There may be times where you
might not see anyone for awhile.” (Clotfelter at 61)

56.

Ms. Wilson testified there is usually a time lapse before security will
show up after they are called “...and then they look at you with their eyes
rolled.” (Wilson at 61)

57.

Ms. Clotfelter told then-Associate Director Pam Lyons “I think we have
two problems, security and computers. The feeling is, security won’t do
anything and it is a waste of time to call them.....We have never been
given any other options other than remove yourself from the situation
that makes you uncomfortable and call security.” (Blaylock Depo., p.
174, 176; Ex. 11).
17

58.

Ms. Clotfelter also reported to management, in writing, that her “staff
reports that our guards are as guilty of making inappropriate comments
as the patrons.” (Id., at 63)

59.

If Ms. Clotfelter thought her staff reports, which she admits may have
been made by Ms. Wilson or Karen Jackson, were false, she would not
have passed their concerns up to management. (Clotfelter at 59)

60.

Associate Director Angela Hall claims it is the policy of the Board that
any allegation of sexual misconduct made by an employee is
investigated. (Hall at 15)

61.

Ms. Lee, as Public Service Coordinator and a member of the
Administration, never investigated to determine whether security guards
were part of the problem and is not aware of anyone that did. (S. Lee at
67)

62.

Ms. Clotfelter never investigated her staff’s concerns about the security
department, nor did anyone else ever follow up with her on it.
(Clotfelter at 64-65)

63.

Ms. Hall, as Associate Director, is responsible for supervising the
Security Department. (Hall at 14, 18)

64.

Ms. Hall never investigated the reports, or even went to Ms. Clotfelter
18

to ask who was making the report and which guards engaged in what
questionable conduct. (Hall at 75)
65.

Mr. Lee says he asked then Associate Director Pam Lyons who was
reporting that his guards were part of the problem and which guards
were involved but she never got back to him. (Lee at 51-55)

66.

Director Blaylock claims she investigated the matter but that there is no
documentation of it. (Blaylock at 187)

67.

Ms. Blaylock considers it a significant problem for staff to perceive that
security officers themselves are engaged in making inappropriate
comments. (Blaylock at 200)

68.

However, Ms. Blaylock admitted under oath, she never even asked
anyone which guards had engaged in inappropriate conduct. (Blaylock
at 187, 192)

69.

According to Chief Lee, there has never been an investigation of the
Security Department. (Lee Depo., p. 58)

70.

Ms. Lee testifies former Director Ms. Sirmans “did not let us take action
about specific patrons or people that we knew were having - were doing
certain things that were illegal....improper at least....sexual.” (Lee at 48)
Lee recounted one example in which “we had identified at least one
19

gentleman that we knew was masturbating during - in the library, that
we could not ban from the library. We were able to move him out of
certain areas of the library but they wouldn’t let us remove him from the
library permanently.” (S. Lee at 49)5
71.

Mr. Lee has been Chief of Security since 2001.

(Lee at 31) The

Department consists of five full time guards, all of whom have been
there since Lee arrived in 2001. (Id.)
72.

Mr. Lee admits more security manpower is needed. (Id. at 12)

73.

Prior to January of 2011, library computers were dispersed around the
East building in the different departments. (Lee at 18) Lee concedes it
is hard to have a security presence when all the computers are spread
out. (Id.) The more centralized the computers, the easier it is to
maintain a security presence. (Id.)

74.

Mr. Lee testifies that if you have a security presence around the
computers, assuming they are all centralized, can assist in better
addressing sexual misconduct with the computers. (Id. at 19)

75.

Not until January 2011, were the computers were brought together in a
centralized location on the third floor now called the Computer

5

Ms. Blaylock replaced Ms. Sirmans as Director in June of 2009. (Blaylock at 78-79)
20

Commons. (Lee at 17-18)
76.

One purpose of the moving the computers to a centralized location was
to allow assignment of a security guard to stay in the area of the
computers on a more regular basis. (Hall at 85-86)

The Computer

Commons also allows Ms. Wilson and other librarians to have reduced
exposure to the computers. (Id. at 88)
77.

In January 2011, for the first time, a security officer was actually
assigned to patrol that area which acts as a deterrent against elicit
conduct. (Hall at 97-99)

78.

There has never been a security camera that was able to take a visual of
the computer area on the third floor, even after the Computer Commons
was implemented. (Lee at 22)

79.

Mr. Lee believes it would assist with security if he had a camera with a
view of the computer area. (Lee at 26)

80.

Mr. Lee believes, when it comes to management’s support of his
department in connection with addressing sexual misconduct in the
library, “maybe the technology got ahead of them...” (Lee at 29)

81.

Library management brought in Warren Graham, a security expert, in
January and again in October of 2009. (Blaylock at 73, 80)
21

82.

Graham worked with security on sexual harassment matters. (Blaylock
at 194)

83.

Graham did a workshop with Security and also made a presentation with
the entire staff of employees. (Blaylock at 81) According to Blaylock,
“We were trying to, you know, figure out better ways of maintaining
order in the library.” (Id. at 79)

84.

Chief of Security Lee has testified, bringing in Mr. Graham was a waste
of time. (Lee at 75)

85.

Mr. Lee testified “...the fact that they’re bringing in somebody who was
mall security, I had a problem with that, me personally. Me personally.”
(Lee at 72)

86.

Mr. Lee made jokes during Mr. Graham’s presentation to the rest of the
employees. (Lee at 77)

87.

Ms. Clotfelter wrote management a memorandum stating “...part of
yesterday’s session with Warren Graham and Mike Lee was like a
pissing match.” (Clotfelter at 51)

Clotfelter testified security’s

response to Mr. Graham was “disrespectful” with an “undercurrent” of
“murmuring” the whole time he was giving his presentation. (Id. at 55)
88.

Ms. Lee says Mr. Graham was “very proactive...and address situations
22

head on...put particular procedures in place that would give you the
ability to address the situation with a track record of incidents...” (S.
Lee at 64-65)
89.

According to Ms. Lee, Chief of Security Mike Lee “did not adhere to the
same philosophy, I don’t think, that Warren Graham presented when he
came.” (Id. at 64)

90.

Ms. Lee’s impression is that Mr. Lee was skeptical about the sexual
harassment complaints being made by library employees and that “it
influenced the other security guards and their approach to how to handle
the complaints and the situations they encountered. (S. Lee at 62)

91.

Until November of 2010, there was existed no official or written policy
or guidelines regarding when a patron should or could be banned. (Lee
at 88)

92.

There is no way to keep track of which patrons have been banned from
the library - it is helter skelter. Mr. Lee says you just “try to remember.
Try to remember.” (Lee at 96, 98)

93.

Mr. Lee testified two different studies were done by outside
organizations of security at the downtown library but that he was never
provided with them and has never seen them. (Lee at 106)
23

94.

Ms. Lee, however, says when it comes to the manner or results of the
Security Departments efforts, “it was very difficult to get any kind of
specific information from [Mr. Lee]. (S. Lee at 63-64)

95.

Ms. Lee concedes “They were probably not as effective. I don’t think
they were trained very well in how to handle [sexual misconduct in the
library]....they didn’t know how to handle it.” (S. Lee at 39)

96.

Ms. Hall is responsible for making certain that the Security Department
receives needed training. (Hall at 19)

97.

Ms. Hall says she was worried about both the perception and the reality
regarding the Security Department. (Hall at 79) She wants to do more
training for security guards. (Hall at 77)

98.

Ms. Hall concedes that “referring to this particular case....that if
documentation has been presented, that there’s a problem it may not
have been acted on appropriately.” (Hall at 83).

99.

Ms. Hall concludes that training of security is one area that may not
have been acted on appropriately. (Hall at 83)

100. Ms. Lee testifies that, ultimately, the responsibility for ensuring security
is trained lies with the Director or the Board. (S. Lee at 41)
101. According to Ms. Lee, library Administration has not been as supportive
24

as it should have been to the Security Department in connection with
handling sexual misconduct in the library. (S. Lee at 77-78)
102. Director Blaylock: “I felt like we had not done an adequate job of
training all staff in handling people...” (Blalock at 79-80)
103. When asked if she ever considered that security was not doing its job
properly, Ms. Blaylock testified “Yes. I did. And that’s one reason we
tried to get more training for the security.” (Blaylock at 226)
104. Ms. Blaylock says the library generated a Customer Service Handbook
but that it did not get into the hands of the staff until November of 2010
“...because we were inefficient and ineffective in getting it done.”
(Blaylock at 81-82)
105. Until December of 2010 or January of 2011, there has never been a
security office located in any way that is visible to the patrons.
(Blaylock at 94-95)
106. There has never been security present in a stationary spot in a place
where it was clear to patrons that was anywhere near the computers.
(Blaylock at 97-98)
107. None of the computers have privacy screens. (Blaylock at 102)
108. There is no signage to inform patrons what is expected of them or what
25

the guidelines are. (Blaylock at 103)
109. The general rules are not posted by the computers. (Blaylock at 104)
110. There has never been a sign near the computers of any kind, and no sign
informing patrons that the library will cooperate with law enforcement
if they engage in publuc display of unlawful pornography. (Blaylock at
246)
111. Patrons can log onto library computers without a library card or
providing their name. (Wilson at 39, 54)
112. Patrons were allowed to stay all day and move from computer to
computer accessing the internet without a time limit and many did that.
(Clotfelter at 50-51)
113. Ms. Clotfelter believes setting a time limit on how long patrons can use
the computers would “move people along.” (Clotfelter at 50)
114. Once when Ms. Clotfelter and Ms. Wilson both saw a patron in their
department with his hands in his pants, Ms. Clotfelter said to Ms.
Wilson something “similar to” “Maybe if we stand up and look at him,
he’ll take the hint and leave.” (Clotfelter at 68-69)
115. Pursuant to library policy, patrons can look at whatever they like. If
they ask override a particular website, the librarian has to override it.
26

(Wilson at 39-40)
116. When patrons ask a librarian who has logged them off of a computer to
log them back on, the librarian must do so. (Wilson at 53-54)
117. Dave Ryan is a Computer Services Liaison (CSL) for the library. (Ryan
Depo., p. 83-84) CSLs received formal training and were responsible
for going out and ensuring staff was implementing computer technology.
(Blaylock at 252)
118. According to Mr. Ryan, Cybrarynet was not used for dealing with
patrons using computers for viewing pornography - he used it for people
who were listening to music too loudly based on guidelines provided by
the Administration. (Ryan Depo., p. 83-84)
119.

CybraryNet had no message concerning objectionable websites or
pornography. (Wilson at 50, 52)

120. On November 1, 2010, Ms. Blaylock sent an email to the staff
acknowledging that staff might be misinformed regarding how to use
CybraryNet to shut down patron computers. (Blaylock at 248-250)
121. According to Department Head Clotfelter, up until October of 2009 (the
same month Ms. Wilson filed her EEOC Charge), no one from
Administration had instructed her to use CybraryNet to send messages
27

to patrons on their computers. (Clotfelter at 32)
122. As a result, Ms. Clotfelter wrote an email to management on October 30,
2009, stating “And, no, we haven’t been sending messages with
CybraryNet....” (Id.)
123. When Ms. Lee received monthly reports from employees, she did not
always read them during the same month; she would usually be a month
or two behind. (S. Lee at 201-11) She admits it is problematic that an
employee’s reports of sexual harassment might not be read by her until
much later, after the fact. (Id. at 27)
124. There was a period of time when Ms. Wilson’s monthly reports were
never being passed along to the next person in the chain of command,
the Associate Director. (S. Lee at 27) Ms. Lee and the Director have
had many discussions about “the need better communication.” (Id. at
79)
125. Ms. Hall admits that before March of 2011, the Associate Directors did
not get employees’ monthly reports. (Hall at 22) Up to that time, there
was no requirement for the Public Service Coordinators to send the
reports up the chain to the Associate Director. (Id. at 24) The monthly
reports did not and still do not go to the Director either, nor is there
28

presently any requirement they be sent to her, according to the Director.
(Blaylock at 134, 138)
126. Issues like reports of sexual misconduct were not brought to Ms. Hall’s
attention until this case was filed. (Hall at 29)
127. Director Blaylock was never made aware of any complaint made by Ms.
Wilson about sexual misconduct in the library until Ms. Wilson until
September of 2009. (Blaylock at 62)
128. Even after making multiple complaints that the library was not
addressing the public display of pornography on its computers, for
several months, Ms. Wilson was required to check laptops which were
returned by patrons after they had checked them out for use for a history
of pornographic web sites. (Clotfelter at 70; Wilson Affidavit, para. 13).
She and other employees were told to check for and make a note of any
pornographic sites which were accessed, so the IT department could add
those sites to the filter. (Id.) In order to do this, there were times when
the only way to tell what the nature of the sites accessed was, was to
look at the content of the site itself and be exposed again to
pornography. (Id.)
129. Ms. Lee admits Ms. Wilson performed this function and that the
29

Administration could have used other options for checking the histories
and that it was inappropriate to ask Ms. Wilson to do it given that she
had been complaining for a long time about being offended by that very
topic. (S. Lee at 95)
130. Ms. Wilson complained many times about the sexually hostile work
environment but nothing changed.

(Wilson Affidavit, para. 14)

Management made it very clear to her they did not care about the
problem and she felt she was the one being blamed. (Id.) One time
when Ms. Wilson made another report of the problem, Ms. Blaylock
told her to “Get over it and stop living in the past.” (Id.) Ms. Blaylock
told Ms. Wilson several times “If you don’t like it, leave.” (Id.) Former
Director Ms. Sirman and Ms. Lee also said the same thing to her. (Id.)
Ms. Wilson testifies that attitude was part of the culture of the library.
(Id.)

The Board’s Highest Members of Library Administration Admit Failures
131. When asked if she agreed that the Birmingham Public Library has not
done as good a job as it should have, or could have, to protect Ms.
Wilson from a sexually hostile work environment, Ms. Lee responded
30

under oath “For the most part. Yes.” (S. Lee at 75)
132. Associate Director Hall admits she told Ms. Wilson and Ms. Jackson
when discussing harassing behavior in the library, “It’s been a lot of
years of things not happening as it should.” (Hall at 48) Further, Ms.
Hall admits she was telling the truth when she made that statement,
testifying in her own words “Based on the litigation that was presented
to us, and this conversation was a direct response to all of that. Yes.”
(Id. at 48-49) She does not disavow it now. (Id. at 49)
133. Ms. Blaylock admits “none of us was were [sic] doing everything that
we could do.” (Blaylock at 227)
Argument
The Defendants appears to make five arguments in support of their Motion
for Summary Judgement: (1) that the Board is not a separate legal entity and not
subject to suit; (2) that certain of the actions Ms. Wilson alleges are time barred
because they occurred more than 180 days from the date she filed her EEOC
Charge; (3) that the harassment was not based on Ms. Wilson’s sex; (4) that the
harassment was not severe and pervasive and (5) that they had policies in effect to
adequately address the sexual harassment. Each of the Defendants’ arguments
fails.
31

The Board is a Legal Entity Subject to Suit
The Plaintiff’s Amended Complaint alleges the following at paragraph 7:
“Defendant, Birmingham Library Board, is an entity created by Birmingham City
Code Section 2-5-1, et al. and is subject to suit in this Court. See Amended
Complaint.
In paragraph 7 of its Answer of Defendant Birmingham Library Board to
Amended Complaint, the Board contains the following language: “Defendant
admits the averments contained in paragraph 7.” See Answer of Defendant
Birmingham Library Board to Amended Complaint. (emphasis added)
The Board did not file any further amendment to its Answer.
None of the Actions Alleged by Ms. Wilson are Time-Barred
“A hostile work environment claim is comprised of a series of separate acts
that collectively constitute one “unlawful employment practice.” ... It does not
matter, for purposes of the statute, that some of the component acts of the hostile
work environment fall outside the statutory time period. Provided that an act
contributing to the claim occurs within the filing period, the entire time period of
the hostile environment may be considered by a court for the purposes of
determining liability.” National Railroad Passenger Corporation v. Morgan,
536 U.S. 101, 122 S. Ct. 2061, 2074 (2002).
32

“Where an employee charges an employer with continuously maintaining
any illegal employment practice, he may file a valid charge of discrimination
based upon that illegal practice until 180 days after the last occurrence of an
instance of that practice.” Beavers v. American Cast Iron Pipe Co., 975 F.2d 792,
796 (11th Cir. 1992), (quoting Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d
241, 249 (5th Cir. 1980)).
Where the discriminatory acts constitute a “continuing violation,” a plaintiff
may bring a suit on the basis of these acts so long as the “last occurrence of an
instance of that practice” occurred within the 180-day window. Id.
The Beavers Court stated, “In determining whether an employer’s
constitutes a continuing violation, therefore, we must distinguish between the
“present consequence of a one-time violation,” which does not extend the
limitations period, and the “continuation of the violation into the present,” which
does. See Webb v. Indiana National Bank, 931 F.2d 434,438 (7th Cir. 1991)”
Beavers, at 796.
“A hostile working environment claim is the quintessential continuing
violation since it finds its basis in an ‘ongoing pattern of offensive conduct’.”
Lane v. Ogden Entertainment, Inc., 13 F. Supp. 2d 1261, 1272 (M.D. Ala. 1998).

33

Ms. Wilson has alleged and submitted substantial evidence of multiple
actions of offensive, sexually charged actions directed at her due to her sex which
occurred within 180 days of filing her charge: During the 180 day period from
April 10, 2009, until she filed her EEOC Charge on October 7, 2009, Ms. Wilson
was subjected to unwelcome and offensive, sexually charged comments, touchings
or gestures by library patrons while at work many times. (Wilson Affidavit, para.
4) She was subjected to pornography on computers on a daily basis. (Id.) She
was subjected to patrons fondling or masturbating their genitals on at least two
occasions. (Id.) Patrons made advances on her, asking her out on dates dozens of
times. (Id.) She had one patron rub up against her buttocks with his erect penis.
(Id.) Other patrons would come in and stare at her. (Id.)
Ms. Wilson has also alleged and submitted substantial evidence of multiple
actions of offensive, sexually charged actions directed at her due to her sex which
occurred more than 180 days of filing her charge, as well as multiple such actions
occurring after she filed her charge.
Simply put, Ms. Wilson has alleged more than one act contributing to the
claim which occured within the filing period,. As such, the entire time period of
the hostile environment may be considered by a court for the purposes of
determining liability.
34

Moreover, the actions alleged constitute an ongoing basis of similar,
connected conduct. The conduct alleged to have occurred more than 180 days
before she filed her charge involve the same type of discrimination and
acts/ommisions - both from the standpoint of the patrons (making ongoing sexual
advances on her, groping her, viewing pornography etc.) and from the standpoint
of the Defendants (ongoing failure to take adequate measures to address the
conduct regarding security failures in numbers, attitude and practices, lack of
signage, lack of library card requirement to use computers, lack of training to staff
on how to implement effective measures, lack of privacy screens, etc.).
Additionally, the pre- April 10, 2009 actions in question are not in the
nature of isolated and discrete, stand-alone work assignments or personnel
decisions but, rather, are recurring actions toward her by patrons and recurring
failures to address the ongoing patterns of unlawful conduct by the Defendants.
In short, pre-April 10, 2009 incidents alleged by Ms. Wilson are not timebarred because she alleges at least one act contributing to her claim which falls
within the 180 day statute of limitations period and because all of the acts, when
viewed in their totality, collectively constitute an unlawful employment practice.

35

The Harassing Acts Were Based on Ms. Wilson’s Sex
All of the acts alleged and demonstrated by substantial evidence by Ms. Wilson
are sexual in nature. All the acts were perpetrated by males. None were
perpetrated by females. None were perpetrated toward males.
Ms. Wilson has submitted evidence that male patrons made sexually
charged comments about her body: “You have some big titties,” “You have a nice
ass,” “Look at you just shaking that ass,” and “You have pretty lips.” “Another
patron told her “I want to paint your face” with a nasty look on his face. Ms.
Wilson has submitted evidence of being touched in sexual ways: One patron
rubbed up against her buttocks with his erect penis. She has submitted evidence
of being asked out on dates and being made the subject of other advances
exclusively by male patrons.
Meanwhile, there is no evidence suggesting male employees were similarly
the subject of sexual comments, touching or advances.
Ms. Wilson has submitted evidence that all of the pornography she was
exposed to consisted of pornographic images of women being viewed by males,
that the pornographic material involved heterosexual subject matter which
depicted only women in degrading and pornographic ways (for example, see Ex.

36

28 to Blaylock Depo.).6 See Asklar v. C.H. Robinson Worldwide, Inc., 2007 WL
7084789; Carlson v. C. H. Robinson Worldwide, Inc., No. 02-3780 WL 758602,
at **12 (D. Minn, March 21, 2005) (rejecting Defendant's argument that Plaintiffs'
exposure to pornography did not constitute harassment based on sex where
Plaintiffs stated that the pornography involved almost exclusively images of naked
women and finding that such allegations demonstrated that the pornography
objectified women and satisfied the “ ‘based on sex’ ” requirement).
Ms. Wilson has submitted evidence that male patrons after having displayed
pornographic images on library computers, asking her to print the images and
provide the printed images to them, which she was required to do by her
Department Head.
Additionally, Ms. Wilson has submitted evidence from which a reasonable
jury could find that the actions of patrons viewing nude females in pornographic
acts or poses was directed at Ms. Wilson because of her sex as demonstrated by
the behavior of the males who appeared to enjoy or desire to be “caught” by Ms.
Wilson: On dozens of occasions, she observed patrons who saw that she had seen
them masturbating or viewing pornographic images. In those instances, the
6

It is thought to be beyond any reasonable dispute that these materials (which include
images of very young women being subjected to hardcore sexual acts by older males, or multiple
males, in various obscene poses, on websites with names such as seemy gf.com, as an example)
are specifically degrading to women, in particular. (See Ex. 28 to Blaylock Depo.)
37

patrons regularly made eye contact with her, smiled, and stared at her while
continuing to masturbate or look at the pornography. Ms. Wilson has testified, “It
was clear they enjoyed making me uncomfortable.” (Wilson Affidavit, para. 6)
Moreover, Ms. Wilson has testified none of this behavior appearing to be aimed at
the librarian/enjoyment at being “caught” was ever exhibited by patrons toward
male library employees - and no evidence exists disputing this fact.
Ms. Wilson has presented substantial evidence that the harassment she
suffered was due to her sex.
The Harassment was Severe and Pervasive
Ms. Wilson has submitted substantial unrefuted evidence of severe
harassment, which was both humiliating and physically threatening.
She was subjected to multiple sexual comments which are explicit in nature:
“You have some big titties,” “You have a nice ass,” “Look at you just shaking that
ass,” and “You have pretty lips,” “I want to paint your face”.
She has submitted evidence of aggressive, unwelcome touching: a male
patron rubbed his erect penis against her buttocks, she was gripped by the hand by
a male patron attempting to keep her from escaping his advances.
She has submitted evidence of being followed from floor to floor around the
library by male patrons.
38

She has submitted evidence of male patrons smiling at her while
masturbating in her presence.
She has submitted evidence of male patrons asking her out over and over
again.
She has submitted evidence of male patrons repeatedly smiling at her and
staring at her while sexually degrading images of nude women and girls in
obscene poses and explicit, hard core sex acts are selected and made visible on
computer screens in her presence in the form of both pictures and videos.
Ms. Wilson has submitted substantial unrefuted evidence the harassment
was pervasive.
She has submitted evidence the harassment took place over a series of years.
She has submitted evidence the harassment took place on a daily basis.
She has submitted evidence that on dozens of occasions, she has had patrons
who she “caught” viewing pornography, smile and stare at her as they continued to
display the images.
She has submitted evidence of more than 20 occasions in which male
patrons have followed her around the library while leering at her.

39

In addition to the above testimony, She has testified to at least ten
specifically identifiable examples of sexual harassment directed toward her by
male patrons.
She has submitted substantial evidence demonstrating multiple instances in
which she reported sexually harassing incidents, whether verbally or in writing.
Critically, with the notable exception of the Director, the Defendants’ own
management team does not dispute Ms. Wilson’s allegations regarding the nature
of the sexual harassment. This includes the Defendants’ Associate Director,
Public Service Coordinator and Department Head, See paragraphs 36-39, above.
Ms. Wilson has demonstrated that the harassment directed at her was both
severe and pervasive to the point it caused to her leave her job in November 2010.
The Defendants Failed to Adequately Address the Harassment
The record is rife with admissions by management at all levels that it failed
to adequately address Ms. Wilson’s repeated complaints of ongoing harassing acts.
Among other things, the Defendants’ management team has admitted under oath
that it (1) failed to adequately communicate Ms. Wilson’s complaints up the chain
of command, (2) failed to adequately staff the security department; (3) failed to
adequately train the security department; (4) failed to adequately train staff on how
to use CybraryNet or otherwise deal with problem patrons; (5) failed to centralize
40

computers for more effective patrol and monitoring by security; (6) failed to put a
video surveillance camera in the computer area; (7) failed to investigate claims of
improper, sexually harassing conduct by their own security staff; (8) failed to
protect Ms. Wilson from additional, unnecessary exposure to pornography by,
instead, requiring her to view more of it by documenting patron’s elicit behavior
on the computers; and (9) operated under a one person Human Resources
Department with responsibility for addressing sexual harassment and all other
personnel issues for 280 employees in 17 branches across the city, while that
person was in a long-term romantic relationship with the Chief of Security she was
charged with overseeing. See paragraphs 45-129, above.
In addition, Ms. Wilson has submitted evidence that the Defendants
employed a Chief of Security who openly mocked a “security expert” it brought in
while he was in the midst of a sexual harassment presentation and in the presence
of the whole library staff, failed to employ signage of any kind informing patrons
of what constituted impermissible behavior and what its consequences would be,
failed to install privacy screens on computer monitors, failed to timely respond to
security calls, failed to have any guidelines for how or when a patron could be
banned from the library, failed to have any system for memorializing which
patrons had been banned and under what circumstances and failed, even to this
41

day, to enact measures to ensure all complaints of sexual harassment made in
monthly reports submitted by staff members are provided to the Director. See
paragraphs 45-129, above.
Instead, when Ms. Wilson complained about the sexual misconduct directed
at her, both Public Service Coordinator Sandra Lee (third in command) and
present Library Director Irene Blaylock told her, “If you don’t like it leave.” See
paragraphs 41-43, above.7
When asked if she agreed that the Birmingham Public Library has not done
as good a job as it should have, or could have, to protect Ms. Wilson from a
sexually hostile work environment, Ms. Lee responded under oath “For the most
part. Yes.” (S. Lee at 75)
Associate Director Hall admits she told Ms. Wilson and Ms. Jackson when
discussing harassing behavior in the library, “It’s been a lot of years of things not
happening as it should.” (Hall at 48) Further, Ms. Hall admits she was telling
the truth when she made that statement, testifying in her own words “Based on the

7

Notably, the testimony describing these specific responses does not come solely from
Ms. Wilson. The same testimony was given by Ms. Wilson’s Department Head Barbara
Clotfelter, a 29 year employee and third in command Sandra Lee, both of whom are presently
employed in management positions by the Defendants. Both Clotfelter and Lee testified former
Director Sirmans made the same statements repeatedly.
42

litigation that was presented to us, and this conversation was a direct response to
all of that. Yes.” (Id. at 48-49) She does not disavow it now. (Id. at 49)
Ms. Blaylock admits “none of us was were [sic] doing everything that we
could do.” (Blaylock at 227)
Ms. Wilson has submitted extensive and compelling evidence that the
Defendants’ failed to adequately address her repeated complaints of sexual
harassment.
Conclusion
The Defendants’ have failed to meet their burden under the standard for
determining whether summary judgment is appropriate. In light of the breadth and
depth of the evidence in the record, a reasonable jury could find that the
Defendants’ have violated Ms. Wilson’s right under Title VII of the Civil Rights
Act to be free from a sexually hostile working environment. As a result, their
Motion for Summary Judgment should be denied.
Respectfully submitted,

s/Adam P. Morel
Adam P. Morel
ATTORNEY FOR THE PLAINTIFF

43

OF COUNSEL:
LAW OFFICES OF ADAM MOREL, P.C.
517 Beacon Parkway West
Birmingham, AL 35209
Telephone: [phone]
Facsimile: [phone]

CERTIFICATE OF SERVICE
I hereby certify that on August 17, 2011, I electronically filed the foregoing
with the Clerk of the Court using the CM/ECF system which will send notification
of such filing to all attorneys of record.

s/Adam P. Morel
OF COUNSEL

44