Wilson v. The Birmingham Public Library Foundation et al

Filing 41

RESPONSE in Support re 31 MOTION for Summary Judgment filed by Birmingham Library Board, City of Birmingham, Alabama, The. (Attachments: # 1 Exhibit Deposition of Robert Jones)(Fullerton, Frederic)

FILED
2011 Sep-02 AM 10:42
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.

)
)
)
)
)
)
)

CIVIL ACTION NO.
CV-10-KOB-2386

DEFENDANTS’ REPLY BRIEF IN SUPPORT OF SUMMARY
JUDGMENT

Fredric L. Fullerton, II
Assistant City Attorney
Attorney for Defendants

CITY OF BIRMINGHAM
DEPARTMENT OF LAW
710 North 20th Street
600 City Hall Building
Birmingham, Alabama 35203
[phone]
[phone] Fax

1

DEFENDANTS’ RESPONSE TO PLAINTIFF’S UNDISPUTED FACTS.
1.

Admitted with Clarification. The Library Board controls the assets on
behalf of the City. (Birmingham City Code, Section 2-5-71 et. al).

2.

Admit.

3.

Admitted with Clarification. The Library Board controls the assets on
behalf of the City. (Birmingham City Code, Section 2-5-71 et. al).

4.

Admit.

5.

Admit.

6.

Admit.

7.

Admit.

8.

Admit.

9.

Admit.

10.

Admit.

11.

Admitted with Clarification. The Library Board controls and manages
assets and employees on behalf of the City. (Birmingham City Code,
Section 2-5-71 et. al).

12.

Admitted with Clarification. Plaintiff is employed by the City.

13.

Admit.

14.

Admit.
2

15.

Admitted in Part, denied in Part. Defendant admits that Plaintiff is an
employee of the City and that she was subject to random, criminal
acts by patrons at the Birmingham Library Branch as outlined in her
complaints made in three (3) reported sexual based incidents
involving her in the downtown branch from 2009 to 2010.
(Wilson depo, p. 67-93; Attached Exh. 5)

16.

Denied

17.

Denied.

18.

Denied.

19.

Denied.

20.

Denied.

21.

Denied.

22.

Denied.

23.

Denied.

24.

Admitted in part as to working on third floor, Denied in part as to
male co-employees. (Robert Jones depo. P. 13-14, 34-40)

25.

Denied. (Robert Jones depo. P. 13-14, 34-40)

26.

Admit.

27.

Admitted in part, dented in part. Defendant admits that Plaintiff
3

outlined her complaints to security and made in three (3) reported
sexual based incidents involving her in the downtown branch from
2009 to 2010. (Wilson depo, p. 67-93; Attached Exh. 5),
28.

Admitted in part, dented in part. Defendant admits that Plaintiff
outlined her complaints to security and made in three (3) reported
sexual based incidents involving her in the downtown branch from
2009 to 2010. (Wilson depo, p. 67-93; Attached Exh. 5),

29.

Admitted in part, dented in part. Defendant admits that Plaintiff
outlined her complaints to security and made in three (3) reported
sexual based incidents involving her in the downtown branch from
2009 to 2010. (Wilson depo, p. 67-93; Attached Exh. 5),

30.

Admitted in part, dented in part. Defendant admits that Plaintiff
outlined her complaints to security and made in three (3) reported
sexual based incidents involving her in the downtown branch from
2009 to 2010. (Wilson depo, p. 67-93; Attached Exh. 5),

31.

Admit.

32.

Admit.

33.

Admit.

34.

Admit.
4

35.

Admit.

36.

Admit.

37.

Admit.

38.

Admitted in part, Denied in Part. Defendant denies Sandra Lee was
“third in command”. There is no testimony stating she is “third in
command”. Lee is not in upper management but one of

several

coordinators at the library. Lee does not attend meetings with

the

Director or Associate Director. (Lee depo. 77-78)
39.

Admit.

40.

Admit.

41.

Admit.

42.

Admitted with Clarification. Lee never defined what type of sexual
conduct or specifically recalled in what nature it was being said.
(Lee depo. 46-48).

43.

Denied.

44.

Admitted with Clarification. Lee never defined what type of sexual
conduct or specifically recalled in what nature it was being said.
(Lee depo. 46-48).

45.

Admit.
5

46.

Admit.

47.

Admit.

48.

Admit.

49.

Denied. (Major depo. P. 8-9, 12)

50.

Admit

51.

Denied. (Major depo. P. 8-9, 12)

52.

Admit.

53.

Admit.

54.

Admitted with clarification.

The is no evidence that neither Ms.

Major nor Mike Lee is supervisor of the Plaintiff and their
relationship is not a violation of Library policy.
55.

Admit.

56.

Admit.

57.

Admit.

58.

Admit

59.

Admit.

60.

Admit.

61.

Admitted with Clarification.

Ms. Lee is not the supervisor over

security and had no authority to investigate. (Ms. Lee depo. 67)
6

62.

Admitted with Clarification. Ms. Clotfelter is not the supervisors over
security and had no authority to investigate. (Clotfelter depo. 64)

63.

Admit.

64.

Denied. (Hall depo. 76-77)

65.

Admit.

66.

Admit.

67.

Admit.

68.

Denied (Blalock depo. 188-192).

69.

Denied. (Lee depo.49-53)

70.

Admit.

71.

Admit.

72.

Admit.

73.

Admit.

74.

Admit.

75.

Admitted with Clarification. Computers were place in common area
per grant. (Blalock depo.31-32, 83-85).

76.

Admitted with Clarification. Computers were place in common area
per grant. (Blalock depo.31-32, 83-85).

77.

Denied. Security guards routinely patrolled the entire library. The
7

“Computer Common area” was placed there in January and thus
security patrols started in January. (Lee depo. 17-18)
78.

Admit.

79.

Admit.

80.

Admitted with Clarification. Lee also admitted that the security was
given support and handling the situation. (Lee depo. 28-29)

81.

Admit.

82.

Admit.

83.

Admit.

84.

Admitted with Clarification. Lee did not feel that Graham had any
experience or qualified to deal with any security issues that the library
may be facing. (Lee depo.71-72).

85.

Admitted with Clarification. Lee did not feel that Graham had any
experience or qualified to deal with any security issues that the library
may be facing. (Lee depo.71-72).

86.

Admitted with Clarification. Lee did not feel that Graham had any
experience or qualified to deal with any security issues that the library
may be facing. (Lee depo.71-72).

87.

Admitted with Clarification. Clotfetlter never inquired with Lee or
8

any security guard and this was her personal opinion. (Clotfleter
depo- 81-83).
88.

Admit.

89.

Admit.

90.

Admit.

91.

Denied. Library had an official policy in effect to ban individuals
and had banned individuals. Policy was not written. (Blalock depo
145-150, 198-201)

92.

Denied.

93.

Admit.

94.

Admit.

95.

Admit

96.

Admit.

97.

Admit.

98.

Admit.

99.

Admit.

100.

Admit.

101.

Admit.

102.

Admitted with Clarification. Blalock complete quote “I felt we had
9

not done an adequate job of training all staff in handling people and
providing

good customer service and knowing what to down when

that broke

down.” Blalock was referencing to better customer

service for patrons in general. (Blalock depo. p. 79-80).
103.

Admit.

104.

Admitted with clarification. A policy manual already existed as well
patron behavior policy. The Library has an internet use policy and a
patron behavior policy. (Wilson depo, p.36-39;
312-319,

Defendants’

Exhs.

1,

2,

Blalock depo, p.
3,

See

also

www.bplonline.org).
105.

Admitted with Clarification. Security has stations and patrols.
(Blalock depo. 91-98).

106.

Admitted with Clarification.

Security has stations and patrols.

(Blalock depo. 91-98).
107.

Admitted with clarification. Security screens were determined not to
be effective but promoted criminal and obscene behavior. (Blalock
depo. 102-103).

108.

Denied. Patrons wanting to access the internet services at the Library
are required to accept the policies that they will not violate the
10

criminal laws of the State of Alabama and view pornographic
websites. (Wilson depo, p. 40-59; Blalock depo, p. 103, 312-319).
109.

Denied. Patrons wanting to access the internet services at the Library
are required to accept the policies that they will not violate the
criminal laws of the State of Alabama and view pornographic
websites. (Wilson depo, p. 40-59; Blalock depo, p. 103, 312-319).

110.

Admitted in part and denied in part, Patrons wanting to access the
internet services at the Library are required to accept the policies that
they will not violate the criminal laws of the State of Alabama and
view pornographic websites. (Wilson depo, p. 40-59; Blalock depo,
p. 103. 312-319). Further, Patron behavior policy is distributed in
paper tear out form. (Blalock depo, p. 105-108)

111.

Admitted with Clarification. Patrons wanting to access the internet
services at the Library are required to accept the policies that they
will not violate the criminal laws of the State of Alabama and view
pornographic websites. (Wilson depo, p. 40-59; Blalock depo, p. 312319).

112.

Admitted with Clarification. Policy in place limiting time on
computer usage.

(Blalock depo. 36,40)
11

113.

Admitted with Clarification.

Policy in place limiting time on

computer usage. (Blalock depo, 36, 40)
114.

Admit.

115.

Admitted with Clarification. Patrons wanting to access the internet
services at the Library are required to accept the policies that they
will not violate the criminal laws of the State of Alabama and view
pornographic websites. (Wilson depo, p. 40-59; Blalock depo, p. 312319).

116.

Admitted with Clarification. Patrons wanting to access the internet
services at the Library are required to accept the policies that they
will not violate the criminal laws of the State of Alabama and view
pornographic websites. (Wilson depo, p. 40-59; Blalock depo, p. 312319).

117.

Admit.

118.

Denied. (Ryan depo. 73-76)

119.

Denied. (Ryan depo. 73-76)

120.

Admit.

121.

Admit

122.

Admit.
12

123.

Admitted with Clarification.

Librarians, male and female, that

experience criminal behavior by patrons are to leave the situation,
required to contact security and write a security report.

(Blalock

depo. 230-232)
124.

Admitted with Clarification.

Librarians, male and female, that

experience criminal behavior by patrons are to leave the situation,
required to contact security and write a security report.

(Blalock

depo. 230-232)
125.

Admitted with Clarification.

Librarians, male and female, that

experience criminal behavior by patrons are to leave the situation,
required to contact security and write a security report.

(Blalock

depo. 230-232)
126.

Admitted with Clarification.

Librarians, male and female, that

experience criminal behavior by patrons are to leave the situation,
required to contact security and write a security report.
depo. 230-232)
127.

Denied.

128.

Denied.

129.

Denied.
13

(Blalock

130.

Denied. Based on the security reports and evidence, the Plaintiff
failed to take the appropriate steps to report. (Wilson depo, p. 6793; Attached Exh. 5)

131.

Admitted with Clarification. Lee was commenting on Security. Lee
is not in upper management but one of several coordinators at

the

library. Lee does not attend meetings with the Director or the
associate director. (Lee depo. 77-78)
132.

Admit.

133.

Admitted with Clarification. Blalock was commenting on security.
(Blalock depo. 226-227)

ANALYSIS OF PLAINTIFF’S CLAIMS AND REBUTTAL ARGUMENT
As stated in the Defendants’ Summary Judgment Brief, the Plaintiff, Barbara
Wilson, attempts to hold the Birmingham Public Library and the City of
Birmingham liable for the random criminal acts of patrons entering the public
library. The Plaintiff does not allege a sexually hostile environment based on the
actions of her co-employee(s) at the Birmingham Public Library, but instead
random, at times unidentifiable, patrons that are entering the library and using the
Library’s computers to view pornographic images and random patrons entering the
Library and committing obscene, criminal sexual acts.
14

(Wilson depo, p.35-36;

Complaint, paragraphs 18, 19, 20).
The Birmingham Public Library is a public institution and as such does not
have the ability to deny entry to anyone. However, the Library has rules that are
enforced in order to maintain a pleasant atmosphere that is conducive to quiet
study, reading, choosing materials, and other information seeking behavior.
Everyone is welcome at the Library but everyone must follow the rules. The
Library is a public building it can only react to improper behavior but it is very
difficult to prevent it. The Library has policies and procedures in place that are
designed to help maintain an atmosphere that is not conducive to disruptive and/or
illegal behavior by our patrons.
Plaintiff’s sole claim against the City and the Board are brought pursuant to
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e) et. seq.
and the Civil Rights Act of 1991. To prove a hostile work environment, the
plaintiff must prove:

(1) that 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 directly 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
15

environment; and (5) a basis for holding the employer liable. Mendoza v. Borden,
Inc., 195 F.3d 1238, 1245 (11th Cir.1999) (en banc) (citation omitted), Reeves v.
C.H. Robinson Worldwide, Inc. ,594 F.3d 798 (11th Cir. Jan. 20, 2010). No court
has ruled that Title VII of the Civil Rights Act of 1964 has been expanded to cover
sexual, obscene criminal actions of patrons in a public facility. The Plaintiff has
failed to meet the above elements as discussed below.
1.

Birmingham Library Board
The Birmingham Public Library, which is operated by the Board, is

administrative division or department of the City of Birmingham. As such, a
department is not a legal entity subject to suit in its own capacity.

White v.

Birchfield, 582 So. 2nd 1085, (Ala. 1991), Dean v. Barber, 951 F.2d 1210 (11th
Cir. 1992).
The Plaintiff testified that she was paid by the City and was employed by the
City. (Wilson depo, p. 103; Lollar depo, p 8-9). Pursuant to the Birmingham City
Code, Section 2-5-71 et. al., the Board members are appointed by the Birmingham
City Council to maintain, operate and control the assets, property, employees, etc.
of the Birmingham Public Library on behalf of the City. (Blalock depo, p. 40-44,
49; Defendants’ Exh. 4) The Deputy Director of Personnel for the City, Barry
Lollar, stated that the Library is considered a Department of the City of
16

Birmingham and is treated as such. (Lollar depo, p.10). All operating funds to the
Library are provided by the City. (Blalock depo, p. 40-44; Lollar Exh. 3, p. 11).
The Library’s budget is presented by the Board to the Mayor on a yearly basis and
approved by the City Council as part of the normal budgetary process. The Library
and Board maintain no independent assets. (Blalock depo, p.40-44; Defendants’
Exh. 4). The Defendant, City, has submitted that it is the Plaintiff’s employee.
Having the Library Board as a Defendant serves so no legitimate purpose. The
Title VII claim against the Board is due to be dismissed.
2.

Statute of Limitations Defense
Plaintiff’s response is simply without merit. Wilson’s claims that predate

her EEOC charge by more than 180 days, calculated from the date the claim was
filed, are time-barred. In the instant case the Title VII claim was filed with the
EEOC on October 7, 2009. (Wilson depo, attached Defendants’ Exh. 2). The
Court can only consider allegations of sexual hostile conduct that occurred on or
after April 10, 2009. Any such incidents or claims before April 10, 2009 would
have been separate and discrete acts, for which plaintiff did not timely file suit.
Thomas v. Kroger Co., 24 F.3rd 147 (11th Cir. 1994); Jones v. Preuit & Mauldin,
876 F.2d 1480 (11th Cir. 1989). Plaintiff’s incidents, allegations or complaints of
2007 and 2008 are not viable.
17

3.

Harassment not directed to Plaintiff based on her sex or gender
Title VII prohibits discrimination, including harassment that discriminates

based on a protected category such as sex. The critical issue, Title VII's text
indicates, is whether members of one sex are exposed to disadvantageous terms or
conditions of employment to which members of the other sex are not exposed.”
(emphasis added) Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80, 118
S.Ct. 998, 140 L.Ed.2d 201 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S.
17, 25, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (Ginsburg, J., concurring)).
The Plaintiff argues that the acts were based on the fact that she is female
and male librarians did not encounter patrons committing viewing pornography or
committing obscene, criminal sexual acts. The Plaintiff states in her brief that:
“None [sexual acts] were perpetrated toward males.” and “Meanwhile, there is no
evidence suggesting male employees were similarly the subject of sexual
comments, touching or advances.” (Plaintiff’s Brief p.36). This is simply false.
The Plaintiff took the deposition of Robert Jones, a male librarian employed
at the Birmingham Public Library and close friend of the Plaintiff. Coincidently,
the Plaintiff did not submit Mr. Jones’ deposition as evidence. Mr. Jones testified
that he also observed and personally witnessed patrons committing obscene, illegal
and criminal acts directed towards him, including patrons viewing pornographic
18

websites in violation of the library's policies. Specifically, Mr. Jones testified
under oath that he personally encountered and witnessed a male in the library’s
bathroom masturbate in the stall directly next to him and look directly at him. (See
attached Robert Jones depo, p. 13-16, 34-41). Mr. Jones furthered testified under
oath that he observed and personally witnessed patrons coming on to staff
members, patrons kissing, etc. (Robert Jones depo, p. 13-16, 34-41) David Ryan,
another male librarian employed at the Birmingham Public Library, testified under
oath that he personally observed pornographic images on the computer and laptops
used by patrons. (Ryan depo, p. 10-26, 72-77).
Further, the evidence presented in the Defendants’ initial brief proves that
patrons, both male and female, have encountered other patrons committing
obscene, illegal and criminal acts and reported it to security.

(Wilson depo,

Defendants’ attached Exh. 5; Blalock depo, Plaintiff’s attached Exh. 33). The
majority of incidents were reported by patrons, not by the plaintiff or other
librarians. (Wilson depo, Defendants’ attached Exh. 5; Blalock depo, Plaintiff’s
attached Exh. 33). The actions of these random patrons are not directed towards
the Plaintiff solely based on her gender or sex. Plaintiff’s argument that she solely
encountered patrons committing obscene, illegal and criminal acts is false. The
evidence clearly shows that the Plaintiff has not been singled out due to her sex
19

and that others, including male and female patrons, and male librarians, were also
exposed to patrons committing criminal acts. Male librarian’s employment was
also affected. The Plaintiff has failed to prove a violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000(e) et. seq. and the Civil Rights
Act of 1991 and meet one of the essential elements. As to the single Federal claim,
summary judgment for the Defendants is appropriate.
4.

Not Severe and Pervasive
The Plaintiff cannot present evidence that the harassment was sufficiently

severe or pervasive to alter the terms and conditions of employment and created a
discriminatorily abusive working environment.
In this matter, as argued in the Defendants’ Initial Brief, in reviewing the
total number of incidents involving the Plaintiff in which she claims it created a
sexually hostile environment there were three (3) from 2009-2010. (Wilson depo,
attached Exhibit 5, Blalock depo, attached Exh. 33). The Plaintiff complains of
three (3) isolated random incidents over a two (2) year time span. The incidents
regarding the Plaintiff in 2007 and 2008 are time barred and cannot be considered.
Clearly, these three (3) isolated random incidents would not be pervasive and
severe. Plaintiff now attempts via an affidavit to increase the number of incidents,
however the Plaintiff never testified to these “new incidents” and further did not
20

report them to security in incident forms (like she had done other times) nor are
such incidents memorized in “monthly reports” submitted as evidence. (Balock
depo, Plaintiff’s attached Exh. 33):
Further, in light of the fact that the downtown branch on the average has
about 440,000 people enter the facility on a yearly basis and roughly 6500 a
month; these incidents would not be pervasive and severe. (Exh. 2, p 319-322,
Defendants’ Exh. 4). Even assuming that the Plaintiff’s additional incidents via
her affidavit are true, based on the above numbers of patrons entering the library it
would still not be pervasive and severe. As the Plaintiff claims patrons are creating
the hostile environment, the total number of patrons entering the library would be
relevant as evidence of harassment is considered both in frequency and in the
totality of the circumstances. Further, the Plaintiff’s co-employees have denied
that they are being inundated with sexually images and further that they are not in a
sexually hostile environment. (Ryan depo. p 77-78, Clotfelter depo, p. 78-85).
The Plaintiff has failed to prove a violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. § 2000(e) et. seq. and the Civil Rights Act of
1991. As to the single Federal claim, summary judgment for the Defendants is
appropriate.

21

5.

Birmingham Public Library Polices in Effect
The Defendants have proven that it has established policies and procedures

to deter patrons entering the library from committing criminal acts. First, since
October 25, 2001, the Birmingham Public Library has had a policy informing all of
its employees that due to public nature of the job, they may be exposed to images,
etc. that they may find to be objectionable. (Blalock depo, p. 312-319, Defendants’
Exh. 1).
Second, the Birmingham Public Library under state and federal law is not
allowed to provide public internet access to pornographic websites. The Library
has enacted an expansive internet policy which attempts to stop such actions.
(Wilson depo, p.36-39, Defendants’ Exh. 3, Blalock depo, p. 312-319, Defendants’
Exh. 2). Under the Library’s internet policy, a patron can only access the Library’s
internet by first filling in their name and library card number on the computer
screen. Once logged in, the patron is required to accept the library’s internet
policy. If they do not, they are barred from accessing the internet. If a patron
chooses to violate the law and policy, all computers in the library have a filter
program call 8e6.com that filters the patron from viewing pornographic websites.
The Library began using internet filters in 1998 and has updated the software
continuously. (Blalock depo, p. 312-319).
22

If an individual is caught viewing a pornographic website by a librarian or
another patron complains, all librarians, including the Plaintiff, can remotely send
a warning message to the patron or completely shut down the objectionable
website. Contacting security is also mandated. The Library uses a program called
Cybrary.net to achieve such. No librarians are required to approach or confront
any patron. Normally, the offending patron that is caught runs out of the library.
(Wilson depo, p. 61). In addition, any websites that are determined to be in
violation of Library’s internet policies are reported to the Library’s Information
Technology Department and from that point on are permanently blocked. The
Plaintiff is well aware of this policy and had used it. (Wilson Depo, p.40-59;
Blalock, p. 312-319).
Third, the Birmingham Public Library has enacted a Patron Behavior Policy.
(Wilson depo, Defendant’s Exh. 4; Exh. 2, Exh. 2, p. 312-319, Defendants’ Exh.
3). The Birmingham Public Library has security personnel to enforce the patrons
polices of the Library. (Blalock depo, p. 86-102, 108-131). The Patron Behavior
Policy is made available in tear off pamphlets that are easily distributed to patrons
entering the facility. The policy is in effect to control the behavior of patrons in
the public facility. The Plaintiff is well aware of this policy.
Of course, no patron behavior policy can stop a patron with the intent on
23

violating the rules and the law. The evidence submitted show that the acts of the
patrons entering the library are criminal in nature. The Birmingham Public Library
has adopted policies that it does not permit, condone, encourage, or tolerate
harassment or illegal acts of any sort through the use of any means, whether those
means are the Internet, books from the library, patrons’ activities or materials
brought to the library. The is absolutely no way the Defendants can predetermine
who will violate the rules or the law. As to the single Federal claim, summary
judgment for the Defendants is appropriate.

24

CONCLUSION
Based on the undisputed facts, the relevant law and considering them in the
light most favorable to the Plaintiff, the Defendants' motion for summary judgment
on claims predicated on hostile environment is due to be Granted.
Respectfully submitted,
/s/Fredric L. Fullerton, II
Fredric L. Fullerton, II
Assistant City Attorney
City of Birmingham Law Department
600 City Hall, 710 North 20th Street
Birmingham, Alabama 35203
[phone]/[phone] FAX
CERTIFICATE OF SERVICE
I hereby certify that on September 2, 2011 I electronically filed the
foregoing with the Clerk of the Court using the e-filing system which will send
notification to the following:
Adam P. Morel, Esq.
517 Beacon Parkway West
Birmingham, AL. 35209
/s/Fredric L. Fullerton, II
Of Counsel
EXHIBITS
1.

Deposition of Robert Jones with attached Defendants’ Exhibit 1.

25