Wilson v. The Birmingham Public Library Foundation et al

Filing 54

Brief and Trial Submission filed by Birmingham Library Board, City of Birmingham, Alabama, The. (Fullerton, Frederic)

FILED
2012 Apr-09 PM 04:21
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

DEFENDANTS’ POSITION STATEMENT AND TRIAL SUBMISSION

The Defendants, the City of Birmingham, a municipal corporation under the
laws of the State of Alabama, and the Birmingham Library Board, by and through its
attorneys, pursuant to the Court’s Pretrial Order of February 29, 2012, Exhibit A, Item
5 submits the following as their Position Statement and Trial Submission:
Plaintiff’s Sexual Hostile Environment Claim
Plaintiff, Barbara Wilson brings this action for alleged injuries against the
Defendants, the City of Birmingham and the Birmingham Library Board 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.

Ms. Wilson alleges that the City and Library

management failed to address the sexually hostile work environment which she alleges
was created by Library patrons. Ms. Wilson alleges that she is a victim of a sexually
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hostile work environment in two ways: 1. Patrons are using the Library’s computers to
view pornographic images and 2. Patrons are entering the Library and committing
obscene acts sexual acts.
Plaintiff’s Essential Elements
In order for Plaintiff to establish a claim of a sexually hostile work environment,
the Plaintiff must prove each of the following facts by a preponderance of the
evidence:
First :

Second :
Third :

That the Plaintiff was subjected to a hostile or abusive
work environment, as hereafter defined, because of her
sex or gender;
That such hostile or abusive work environment by a nonemployee was permitted by the Defendants; and
That the Plaintiff suffered damages as a result of such
hostile or abusive work environment.

Plaintiff’s Burden of Proof
The burden of persuading a jury that the Plaintiff was subjected to a sexually
hostile work environment because of her sex or gender, that such sexually hostile work
environment by a non-employee was permitted by the Defendants and that she suffered
damages remains at all times on the Plaintiff.
Defendants’ Defenses
The Defendants obviously deny each and every material allegation. The
Defendants deny that the Plaintiff worked in a sexually hostile work environment.
Conduct that only amounts to ordinary socializing in the workplace such as occasional
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horseplay, sexual flirtation, sporadic or occasional use of abusive language, gender
related jokes, and occasional teasing, does not constitute an abusive or hostile
environment. Only extreme conduct amounting to a material change in the terms and
conditions of employment is actionable. The Defendants deny that they allowed and/or
failed to adequately address the sexually hostile environment in the library. The
Plaintiff’s complaints were handled and taken seriously. The Defendants further deny
they are legally responsible under Title VII for the actions of non – employees.
The Plaintiff has not been singled out due to her sex or gender and that male
librarians were also exposed to patrons committing sexual, criminal acts. The actions
of these random patrons are not directed towards the Plaintiff solely based on her
gender or sex. The evidence shows that male librarians were also exposed to patrons
committing criminal acts. The evidence will show that patrons, both male and female,
have encountered other patrons committing obscene, illegal and criminal acts and
reported it to security.
The Defendants has an anti-sex discrimination/hostile work environment policy
which is enforced and all employees and public are required to comply. The
Defendants also has established policies and procedures to deter patrons entering the
library from committing criminal acts. The Birmingham Public Library has enacted a
Patron Behavior Policy. The Birmingham Public Library has adopted policies that it
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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.
Patrons wanting access to the internet services at the Birmingham Public Library
are required to accept the policies that they will not violate the criminal laws of the
State of Alabama and view pornographic and other objectionable websites. 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 Defendants pleads that the Birmingham Public Library has used
filtration software since 1998. The Birmingham Public Library currently and at the
time of the Plaintiff’s employment, uses 8e6.com and Cybrary.net to stop access to
pornographic websites by patrons. The Plaintiff was trained and familiar with such
polices. The Plaintiff failed to use such policies.
Since October 25, 2001, the Birmingham Public Library also 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.
Regarding the lack of security claim of the Plaintiff, the Defendants have
provided adequate security and training to prevent patrons entering the Library from
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committing obscene acts sexual acts. The Plaintiff has no evidence or training in
security matters to prove that the security was inadequate. The Plaintiff has no
evidence that the Defendants failed to investigate claims of improper, sexually
harassing conduct by their own security staff. Plaintiff’s evidence is speculation.
If the Plaintiff establishes a prima facie case of sexually hostile environment,
then the Defendant's can present affirmative defense to that claim. In order to prevail
on the affirmative defense, the Defendant must prove each of the following facts by a
preponderance of the evidence:
First :

That the Defendant exercised reasonable care to prevent
any sexually harassing behavior in the workplace; and

Second :

That the Plaintiff unreasonably failed to take advantage of
the preventive or corrective opportunities provided by the
Defendant to avoid or correct the harm or otherwise failed
to exercise reasonable care to avoid harm.

If Plaintiff is successful on her claim of a sexually hostile environment, she is
entitled to compensatory damages. Compensatory damages are not a punishment and
may not be imposed to penalize the Defendant. Compensatory damages must not be
based on speculation or guesswork because only actual damages are recoverable.
Plaintiff is also under duty to mitigate her damages which she has failed to do. The
Defendants cannot be liable for punitive damages. §6-11-26, Code of Alabama, 1975.

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The Defendants do not anticipate any extraordinary evidentiary or legal
problems.
Respectfully Submitted,
/s/Fredric L. Fullerton, II
Fredric L. Fullerton, II
Chief Assistant City Attorney
/s/Nicole E. King
Nicole E. King
Assistant City Attorney
CITY OF BIRMINGHAM
LAW DEPARTMENT
710 North 20th Street
Room 600 City Hall
Birmingham, Alabama 35203
[phone]/[phone] (fax)
CERTIFICATE OF SERVICE
I hereby certify that on April 9, 2012, I electronically filed the foregoing with
the Clerk of the Court using the CM/ECF system which will send notification of such
filing to the following:
Adam P. Morel, Esq.
517 Beacon Parkway West
Birmingham, AL. 35209
/s/Fredric L. Fullerton, II
Of Counsel

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