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

Filing 82

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 9/5/2012. (JLC)

FILED
2012 Sep-05 AM 11:11
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
FREDERICKA M. PROWELL,
Plaintiff,
v.
THE STATE OF ALABAMA
DEPARTMENT OF HUMAN
RESOURCES, et al.,
Defendants.

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) Case No.: 2:10-CV-2993-VEH
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MEMORANDUM OPINION
I.

INTRODUCTION
Plaintiff Fredericka M. Prowell (“Ms. Prowell”) initiated this job

discrimination and retaliation lawsuit arising under Title VII and § 1981 (by and
through § 1983) on November 5, 2010. (Doc. 1). The complaint contains twelve
counts: (1) Title VII racial discrimination against the Alabama Department of Human
Resources (“ADHR”) and Jefferson County Department of Human Resources
(“JCDHR”) (collectively “DHR”); (2) Title VII retaliation against ADHR and
JCDHR; (3) § 1981 racial discrimination against Angela McClintock (“Ms.
McClintock”); (4) § 1981 racial discrimination against Amanda Rice (“Ms. Rice”);
(5) § 1981 racial discrimination against Terri Beasley (“Ms. Beasley”); (6) § 1981

racial discrimination against Joanna Stone (“Ms. Stone”); (7) § 1981 racial
discrimination against Vivian Hunter (“Ms. Hunter”); (8) § 1981 retaliation against
Ms. Stone; (9) § 1981 retaliation against Ms. McClintock; (10) § 1981 retaliation
against Ms. Rice; (11) § 1981 retaliation against Ms. Beasley; and (12) § 1981
retaliation against Ms. Hunter.
Pending before the court are the following six motions: (1) Ms. Hunter’s
Motion for Summary Judgment (Doc. 48) (“Ms. Hunter’s Rule 56 Motion”) filed on
May 21, 2012; Ms. Beasley, Ms. McClintock, Ms. Rice and Ms. Stone’s Motion for
Summary Judgment (Doc. 49) (collectively, “Ms. Stone’s Rule 56 Motion”) filed on
May 21, 2012; (3) ADHR and JCDHR’s Motion for Summary Judgment (Doc. 51)
(collectively, “DHR’s Rule 56 Motion”) filed on May 21, 2012; (4) Defendants’
Motion To Strike Affidavit of Fredericka Prowell (Doc. 74) (“Defendants’ Prowell
Motion”) filed on July 5, 2012; (5) Defendants’ Motion To Strike Affidavit of Tonya
Daniel (Doc. 75) (“Defendants’ Daniel Motion”) filed on July 5, 2012; and (6)
Defendants’ Motion To Strike Affidavit of Erica Pearson (Doc. 76) (“Defendants’
Pearson Motion”) filed on July 5, 2012.
Defendants have filed briefs and evidence in support of their Rule 56 Motions.
(Docs. 50, 52-66).

Ms. Prowell collectively filed her opposing brief, with

attachments, to all Rule 56 Motions on June 21, 2012. (Docs. 69-70). On July 3,
2

2012, Ms. Hunter filed a reply in support of her Rule 56 Motion (Doc. 73), and on
July 5, 2012, the other defendants collectively filed their reply. (Doc. 77).
Ms. Prowell filed her opposition (Doc. 78) to Defendants’ Prowell Motion,
Daniel Motion, and Pearson Motion on July 16, 2012. Defendants followed with
their reply (Doc. 79) on July 18, 2012.
Accordingly, all motions are now under submission. For the reasons explained
below, the Prowell Motion is due to be granted in part and termed as moot in part, the
Daniel Motion is due to be termed as moot, and the Pearson Motion is due to be
granted in part and termed as moot in part. Further, DHR’s Rule 56 Motion, Ms.
Hunter’s Rule 56 Motion, and Ms. Stone’s Rule 56 Motion are all due to be granted,
and Ms. Prowell’s lawsuit is due to be dismissed.
II.

FACTUAL BACKGROUND1
At the time Ms. Prowell filed her federal court complaint on November 5,

Keeping in mind that when deciding a motion for summary judgment the
court must view the evidence and all factual inferences in the light most favorable to
the party opposing the motion, the court provides the following statement of facts.
See Optimum Techs., Inc. v. Henkel Consumer Adhesives, Inc., 496 F.3d 1231, 1241
(11th Cir. 2007) (observing that, in connection with summary judgment, a court must
review all facts and inferences in a light most favorable to the non-moving party).
This statement does not represent actual findings of fact. See In re Celotex Corp.,
487 F.3d 1320, 1328 (11th Cir. 2007). Instead, the court has provided this statement
simply to place the court’s legal analysis in the context of this particular case or
controversy.
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2010, she was employed by ADHR and working for JCDHR classified as a Service
Supervisor within the Child Welfare Division of the state merit system. AF No. 2.2
Ms. Prowell’s supervisors were the Assistant Director of JCDHR, Ms. McClintock,
and the Director of the JCDHR, Ms. Rice, and Ms. Beasley. AF No. 26.
On September 15, 2009, Ms. Prowell had a physical confrontation with one of
her minor daughters. AF No. 7. More specifically, Ms. Prowell allegedly used a belt
to strike her minor daughter’s lower leg three times. AF No. 8.
During the evening of that same date, Ms. Prowell’s husband made a report to
JCDHR against her for child abuse and neglect (“CA/N”) relating to this incident.
AF Nos. 6, 9. Because the call came in during the night, Ms. Hunter, as the Night
Shift Supervisor, was responsible for the initial investigation of the report, along with
Chrislyn Pepper (“Ms. Pepper”), who conducted the initial safety assessment for the
JCDHR report. AF No. 6. Additionally, because the report involved a JCDHR
employee, Ms. Hunter notified her supervisor, Ms. McClintock. AF No. 10.
Ms. Hunter and Ms. Pepper then interviewed the Ms. Prowell’s daughter at her

“AF” stands for admitted fact. These admitted facts are taken from Ms.
Hunter’s narrative summary of undisputed facts contained in her brief (Doc. 48-1 ¶¶
2, 6-8, 10-13, 16-18, 20-23, 25-27) and Ms. Prowell’s response, which does not
directly or indirectly dispute these facts. (Doc. 69 at 2-3). Many other facts are
referenced by the parties, but have not been included in this background, as they are
immaterial to the court’s ruling on summary judgment.
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grandparents’ home in Fairfield, Alabama, and determined that she was no longer in
danger. AF No. 11, 12. Ms. Hunter and Ms. Pepper returned to the JCDHR office
and entered the information into the FACTS reporting system and also sent it by
email to the intake section. AF No. 13.
On September 16, 2009, Ms. Prowell met with Ms. McClintock and Ms.
Beasley, and Ms. McClintock told Ms. Prowell that she had to go home on leave and
use her compensatory time while DHR investigated the allegations of child abuse by
her against her daughter. AF No. 16. On that same date, Ms. McClintock called
Sherry Pilkington (“Ms. Pilkington”), the Director of St. Clair County DHR. AF No.
17.
Ms. McClintock informed Ms. Pilkington that JCDHR had received a report
of child abuse or neglect on a child protective services employee and requested that
St. Clair take responsibility for further investigation of the CA/N report. Id. Ms.
Pilkington agreed to Ms. McClintock’s request, and assigned St. Clair DHR
employee, Melinda Fomby (“Ms. Fomby”) to handle that task. AF Nos. 17, 18.
Consistent with JCDHR’s customary practice, Ms. Rice also decided to transfer
Ms. Prowell from the Child Welfare Division to Child Support while the investigation
into the alleged abuse of her minor daughter was underway. AF Nos. 20, 21. Ms.
Prowell’s salary did not change during the time she worked in JCDHR’s Child
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Support Division. AF No. 27.
Ms. Prowell maintains that ADHR, JCDHR, Ms. McClintock, Ms. Rice, Ms.
Beasley, Ms. Stone, and Ms. Hunter all played a part in placing her on leave and that
the only reason they did this was because of her race. AF No. 22. Ms. Prowell also
asserts that ADHR, JCDHR, Ms. McClintock, Ms. Rice, Ms. Beasley, Ms. Stone, and
Ms. Hunter retaliated against her because of the allegations of child abuse made
against her. AF No. 23.
III.

STANDARDS
A.

Summary Judgment

Summary judgment is proper only when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R . Civ. P.
56(c). All reasonable doubts about the facts and all justifiable inferences are resolved
in favor of the nonmovant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th
Cir. 1993). A dispute is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). “Once the moving party
has properly supported its motion for summary judgment, the burden shifts to the
nonmoving party to ‘come forward with specific facts showing that there is a genuine
issue for trial.’” International Stamp Art, Inc. v. U.S. Postal Service, 456 F.3d 1270,
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1274 (11th Cir. 2006) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)).
B.

Employment Discrimination Generally

A plaintiff in an employment discrimination case maintains the ultimate burden
of proving that the adverse employment decision was made because of intentional
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120
S. Ct. 2097, 2106, 147 L. Ed. 2d 105 (2000); St. Mary’s Honor Center v. Hicks, 509
U.S. 502, 509-12, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993); Nix v. WLCY
Radio/Rahall Comms., 738 F.2d 1181, 1184 (11th Cir. 1984). Although the Supreme
Court previously established the basic allocation of burdens and order of proof in a
disparate treatment case, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.
Ct. 1817, 36 L. Ed. 2d 668 (1973); Texas Dept. of Community Affairs v. Burdine, 450
U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981); Desert Palace v. Costa, 539 U.S.
90, 123 S. Ct. 2148, 156 L. Ed. 2d 84 (2003), that allocation scheme applies only in
cases in which there is no direct evidence of discrimination. Grigsby v. Reynolds
Metals Co., 821 F.2d 590, 595 (11th Cir. 1987).3
As the Eleventh Circuit has explained, “only the most blatant remarks, whose
intent could be nothing other than to discriminate [or retaliate] on the basis of [a
protected category], . . . constitute direct evidence of discrimination [or retaliation].”
Carter v. City of Miami, 870 F.2d 578, 782 (11th Cir. 1989) (footnote omitted).
Based upon this standard and in the absence of a record of any invidiously-charged
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Under the McDonnell Douglas/Burdine scheme, a plaintiff first has the burden
of proving by a preponderance of evidence a prima facie case of discrimination.
Second, once the plaintiff proves a prima facie case, the burden of production shifts
to the defendant to articulate a legitimate, nondiscriminatory reason for its
employment decision. Finally, if the defendant carries its burden, the plaintiff must
either prove by a preponderance of the evidence that the legitimate reasons offered
by the defendant are merely a pretext for discrimination or present sufficient
evidence, of any type, for a reasonable jury to conclude that discrimination was a
“motivating factor” for the employment action, even though the defendant’s
legitimate reason may also be true or have played some role in the decision.
McDonnell Douglas, 411 U.S. at 802-05; Burdine, 450 U.S. at 252-54; Desert Palace,
539 U.S. at 101-02.
C.

Evidentiary Rulings

“All evidentiary decisions are reviewed under an abuse-of-discretion standard.”
See, e.g., General Elec. Co. v. Joiner, 522 U.S. 136, 141, 118 S. Ct. 512, 517, 139 L.

utterances, Ms. Prowell’s case is purely a circumstantial evidence one. (See, e.g.,
Doc. 69 at 5 (“[Ms. Prowell] has established a prima facie case of retaliation with
respect to job duties, and assignments, job evaluations, pay, working conditions,
hiring, promotion, hostile work environment, discipline, and other terms and
conditions of employment in violation of Title VII of the Civil Rights Act . . . .”); id.
at 32-33 (setting forth circumstantial model of proof)).
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Ed. 2d 508 (1997). “An abuse of discretion can occur where the district court applies
the wrong law, follows the wrong procedure, bases its decision on clearly erroneous
facts, or commits a clear error in judgment.” United States v. Estelan, 156 Fed.
App’x 185, 196 (11th Cir. 2005) (citing United States v. Brown, 415 F.3d 1257, 1266
(11th Cir. 2005)).
Moreover, as the Eleventh Circuit has made clear, not every incorrect
evidentiary ruling constitutes reversible error:
Auto-Owners’ second argument is that it is entitled to a new trial
on the basis of what it describes as a number of erroneous evidentiary
rulings by the district court. Evidentiary rulings are also reviewed under
an abuse of discretion standard. Finch v. City of Vernon, 877 F.2d 1497,
1504 (11th Cir. 1989). Moreover, even if Auto-Owners can show that
certain errors were committed, the errors must have affected “substantial
rights” in order to provide the basis for a new trial. See Fed. R. Evid.
103(a). “Error in the admission or exclusion of evidence is harmless if
it does not affect the substantial rights of the parties.” Perry, 734 F.2d
at 1446. See also Allstate Insurance Co. v. James, 845 F.2d 315, 319
(11th Cir. 1988).
Haygood v. Auto-Owners Ins. Co., 995 F.2d 1512, 1515 (11th Cir. 1993). Therefore,
even the existence of many evidentiary errors does not guarantee the party appealing
a new trial. Instead, such erroneous rulings by a district court must “affect the
substantial rights of the parties” for reversible error to occur.

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IV.

ANALYSIS
A.

Defendants’ Evidentiary Motions
1.

Defendants’ Prowell Motion

Ms. Prowell relies upon her own affidavit in opposition to summary judgment.
(Doc. 69-2 at 1-9).4 In their Prowell Motion, Defendants seek to strike the majority
of Ms. Prowell’s affidavit, citing a variety of different grounds, including primarily
a lack of personal knowledge on her part. “FRCP 56(e) and the Eleventh Circuit
require that affidavits in support of or in opposition to summary judgment must be
made with personal knowledge in order to create a genuine issue of material fact.”
Delaware Valley Floral Group, Inc. v. Shaw Rose, 597 F.3d 1374, 1382 (11th Cir.
2010).
Noticeably absent from Ms. Prowell’s affidavit is an affirmation that it is based
on her personal knowledge. Instead, she indicates that the information contained in
her affidavit is premised merely upon “the best of [her] knowledge and belief.”
Such a limited statement does not suffice within the Eleventh Circuit under
Rule 56. See, e.g., Robbins v. Gould, 278 F.2d 116, 118 (5th Cir. 1960) (“‘to the best

The page references to this and other record evidence corresponds with the
CM/ECF page numbering.
4

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of my knowledge and belief’” is “[a]t best this is nothing more than [an] opinion
given without any demonstrated basis of knowledge”);5 Fowler v. Southern Bell Tel.
& Tel. Co., 343 F.2d 150, 154 (5th Cir. 1965) (“Moreover, verification must be on
personal knowledge alone, whereas these petitions were verified only on ‘knowledge,
information and belief.’”); see also Stewart v. Booker T. Washington Ins., 232 F.3d
844, 851 (11th Cir. 2000) (“This bare and self-serving allegation [based only upon
information and belief] where she had no personal knowledge is inadequate to carry
Stewart’s burden on summary judgement.”); Pace v. Capobianco, 283 F.3d 1275,
1278-79 (11th Cir. 2002) (“Likewise, an affidavit stating only that the affiant
‘believes’ a certain fact exists is insufficient to defeat summary judgment by creating
a genuine issue of fact about the existence of that certain fact.”).
Additionally, portions of

her affidavit expressly reference information

obtained from other witnesses as evidentiary support. (See, e.g., Doc. 69-2 ¶¶ 5-8,
12 (referencing Pearson affidavit)).

More importantly, Ms. Prowell has not

articulated how she has personal knowledge about the employment decisions

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en
banc), the Eleventh Circuit adopted as binding precedent all decisions of the former
Fifth Circuit handed down prior to October 1, 1981.
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pertaining to her two white purported comparators,6 Tenille Garnett (“Ms. Garnett”)
and April Garner (“Ms. Garner”),7 when there is a plethora of evidence that neither
one was ever employed by JCDHR, or how she is able to swear under oath that
JCDHR Assistant Director, Ms. McClintock, was somehow temporarily their
supervisor while they were being investigated for reported child abuse. Accordingly,
the court finds that the Prowell Motion is due to be granted as it pertains to any
testimony about who had supervising authority over Ms. Garnett and Ms. Garner with
respect to employment-related matters.
Defendants’ Prowell Motion also challenges Ms. Prowell’s reliance upon a
subsequent EEOC charge filed on March 21, 2011, in which she asserts additional
allegations of race discrimination and retaliation. (Doc. 69-2 ¶ 24; Doc. 69-4). The
administrative status of this second charge is unclear to the court, as no information
is provided by Ms. Prowell about whether the EEOC has ever closed this
administrative file and issued a right to sue letter to her.
Regardless, Ms. Prowell has never amended her complaint in an effort to
assert additional discrimination or retaliation claims stemming from this subsequent

The court addresses the inadequacies of Ms. Prowell’s reliance upon Ms.
Garnett and Ms. Garner as comparators in § IV.B.1.a.(1) below.
6

Within the record, Ms. Garner is also referred to as April Minor (“Ms.
Minor”) (Doc. 77 at 5) and April Carpri. (Doc. 55-5 at 24).
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charge, and the deadline for her to amend pleadings passed over one year ago. (See
Doc. 11 at 2 (“Plaintiff may amend pleadings and/or join additional parties, in
accordance with Fed. R. Civ. P. 15, until April 4, 2011.”) (emphasis omitted)).
Accordingly, because her second charge is untimely under the court’s scheduling
order and has been improperly interjected before the court on summary judgment, the
court agrees with Defendants’ Prowell Motion that all references to the second charge
are due to be struck.
Finally, the court finds that the remaining portions of Defendants’ Prowell
Motion are due to be termed as moot because summary judgment is due to be granted
even when considering these additional areas of evidence offered by Ms. Prowell.
2.

Defendants’ Daniel Motion

Ms. Prowell also relies upon the affidavit of Tonya Daniel (“Ms. Daniel”) in
opposition to summary judgment. (Doc. 69-6). Ms. Daniel’s testimony focuses upon
discussions that she had with Ms. Hunter and Ms. McClintock about the child abuse
complaint lodged against Ms. Prowell. (See, e.g., Doc. 69-6 ¶¶ 6, 14).
In their Daniel Motion, Defendants seek to strike several parts of Ms. Daniel’s
affidavit on lack of personal knowledge, relevancy, and hearsay grounds. (See
generally Doc. 75). The court finds that the Daniel Motion is due to be termed as
moot because the evidence bears no weight on the merits of Ms. Prowell’s
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employment claims, and summary judgment is due to be granted with or without
considering this objected-to proof offered by Ms. Daniel.
3.

Defendants’ Pearson Motion

Ms. Prowell further points to the affidavit of Erica Pearson (“Ms. Pearson”) in
opposing summary judgment. The subject of Ms. Pearson’s testimony is the
investigation into the child abuse allegations asserted against Ms. Garnett.
Defendants’ Pearson Motion disputes the contents of Ms. Pearson’s affidavit on
numerous grounds, including lack of personal knowledge, inaccuracies, irrelevancy,
hearsay, absence of authentication, and incompetency. (See generally Doc. 76).
Several statements included in the Ms. Pearson’s affidavit suggest that the
supervisors of the Cullman County DHR had no authority over Ms. Garnett while she
was under investigation and that, instead, JCDHR Assistant Director Ms. McClintock
was one of the supervisors with the power “to mandate participation or removal of
Ms. Garnett from her position.” (Doc. 69-5 ¶ 8). Ms. Pearson also maintains that the
handling of Ms. Garnett’s situation was in contravention of certain DHR policies and
rules. (See, e.g., Doc. 69-5 ¶¶ 20-22).
However, in providing this information, Ms. Pearson (like Ms. Prowell)
ineffectively swears “to the best of [her] knowledge and belief.” (Doc. 69-5 at 10).
Accordingly, the court concludes that, due to the absence of personal knowledge,
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Defendants’ Pearson Motion is due to be granted as it pertains to any testimony from
Ms. Pearson about who had supervising authority over Ms. Garnett and about whether
Ms. Garnett’s treatment was consistent with DHR policy. The court further finds that
the remaining portions of Defendants’ Pearson Motion are due to be termed as moot
because summary judgment is due to be granted even when factoring in the other
challenged proof offered by Ms. Pearson.
B.

DHR’s Rule 56 Motion
1.

Title VII Race Discrimination

“To prevail on a discrimination claim under Title VII and § 1981, an employee
must establish that ‘she was a qualified member of a protected class and was
subjected to an adverse employment action in contrast with similarly situated
employees outside the protected class.’” Butler v. Alabama Dept. of Transp., 536
F.3d 1209, 1215 (11th Cir. 2008) (quoting Wilson v. B/E Aerospace, Inc., 376 F.3d
1079, 1087 (11th Cir. 2004)); see also Standard v. A.B.E.L. Servs., Inc., 161 F.3d
1318, 1330 (confirming that Title VII and § 1981 share “the same requirements of
proof and use the same analytical framework”) (11th Cir. 1998).
Regarding race discrimination, Ms. Prowell complains about three separate

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situations as set forth in her brief:8 (1) her temporary reassignment during the CA/N
investigation (Doc. 69 at 8); (2) her required use of her accrued compensatory time
during the CA/N investigation (id. at 25); and (3) her failure to receive a promotion.
(Id. at 26). The court addresses each area in turn.
a.

Temporary Reassignment
(1)

Prima Facie Case

With respect to her temporary reassignment claim, Ms. Prowell maintains that
DHR handled the child abuse investigations of Ms. Garnett and Ms. Garner more

The court notes that, to the extent Ms. Prowell has failed to brief the court on
her other allegations of discrimination contained in her complaint, it is appropriate
for the court to treat those particular claims as abandoned. See, e.g., Wilkerson v.
Grinnell Corp., 270 F.3d 1314, 1322 (11th Cir. 2001) (finding claim abandoned when
argument not presented in initial response to motion for summary judgment); Bute v.
Schuller International, Inc., 998 F. Supp. 1473, 1477 (N.D. Ga. 1998) (finding
unaddressed claim abandoned); see also Coalition for the Abolition of Marijuana
Prohibition v. City of Atlanta, 219 F.3d 1301, 1326 (11th Cir. 2000) (failure to brief
and argue issue at the district court is sufficient to find the issue has been abandoned);
Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995); Hudson
v. Norfolk Southern Ry. Co., 209 F. Supp. 2d 1301, 1324 (N.D. Ga. 2001); cf. Road
Sprinkler Fitters Local Union No. 669 v. Independent Sprinkler Corp., 10 F.3d 1563,
1568 (11th Cir. 1994) (concluding that a district court “could properly treat as
abandoned a claim alleged in the complaint but not even raised as a ground for
summary judgment”); McMaster v. United States, 177 F.3d 936, 940-41 (11th Cir.
1999) (claim may be considered abandoned when district court is presented with no
argument concerning a claim included in the plaintiff’s complaint).
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discretely than hers,9 and that Ms. Garnett, in particular, retained her same position
while she was under investigation. (Doc. 69 at 9).
As the Eleventh Circuit has clarified appropriate comparator evidence:
The plaintiff and the employee she identifies as a comparator must be
similarly situated “in all relevant respects.” The comparator must be
nearly identical to the plaintiff to prevent courts from second-guessing
a reasonable decision by the employer.
Wilson, 376 F.3d at 1091 (emphasis added) (citation omitted). Additionally, “[i]f a
plaintiff fails to show the existence of a similarly situated employee, summary
judgment is appropriate where no other evidence of discrimination is present.”
Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (emphasis omitted) (citing
Mack v. Great Atlantic & Pacific Tea Co., 871 F.2d 179, 182 (1st Cir. 1989)).
DHR argues that Ms. Prowell’s prima facie case is deficient because she cannot
satisfy the similarly situated standard with respect to her purported comparators. For
example, DHR points out, with citations to evidence in the record, that the
comparators upon which Ms. Prowell relies were never supervised by Ms. Rice or
Ms. McClintock, as neither was an employee of JCDHR. Instead, Ms. Garnett

In opposing summary judgment, Ms. Prowell does not contend that her
compromised privacy during the CA/N investigation is a separate claim of race
discrimination. However, even if she had, the court would have serious doubts about
its cognizable nature from a prima facie standpoint under the analytical framework
set forth below.
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worked for Cullman County DHR (see, e.g., Doc. 56-2 at 32; Doc. 56-3 at 3, 13)10
and Ms. Garner for Shelby County DHR. (See, e.g., Doc. 55-5 at 25, 28-31; Doc. 561 at 2-3, 8-11).
Thus, the key decision-makers (i.e., Ms. Rice and Ms. McClintock) most
directly involved with the employment-related decision challenged by Ms. Prowell
as discriminatory are different than the individuals who supervised Ms. Garnett and
Ms. Garner. (See, e.g., Doc. 58-8 (Ms. Garnett’s deposition transcript) at 8 (“Q. . . .
Has Angela McClintock ever been your supervisor? A. No.”)). Moreover, Ms.
Prowell has offered no evidence that there were any other JCDHR employees who
remained in their same supervisory position within child protective services while
being investigated for a CA/N report.
Additionally, unlike Ms. Prowell, neither Ms. Garnett nor Ms. Garner were
DHR supervisors, and more specifically neither were responsible for supervising
other employees working in the area of child protective services. (Compare, e.g.,
Doc. 56-3 at 13 (Ms. Garnett’s classification of “SOCIAL WORKER”), with Doc. 54-

Even evidence offered by Ms. Prowell to contest summary judgment
confirms that Ms. Garnett “is a Child Welfare worker for the Alabama Department
of Human Resources, Cullman County Department.” (Doc. 69-5 ¶ 2). Moreover, Ms.
Prowell has pointed to no admissible proof to substantiate her suggestion that Ms.
Rice and/or Ms. McClintock “were supervising authorities of” Ms. Garnett (or Ms.
Garner). (Doc. 69 at 14).
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2 at 8 (Ms. Prowell’s classification of “SERVICE SUPERVISOR”)). Further, Ms.
Prowell has produced no evidence that other similarly situated supervisors remained
in their identical position during the pendency of a CA/N investigation. Therefore,
Ms. Prowell has failed to demonstrate Ms. Garnett’s and Ms. Garner’s substantial
similarity in all relevant respects, and her prima facie case relating to her job
reassignment falls.
Ms. Prowell’s temporary transfer claim prima facially fails for a second
reason–a lack of sufficient substantiality. To be considered an adverse employment
action for the purposes of Title VII discrimination, “the action must either be an
ultimate employment decision or else must ‘meet some threshold level of
substantiality.’” Stavropoulos v. Firestone, 361 F.3d 610, 616-17 (11th Cir. 2004)
(citing Bass v. Board of County Com’rs, Orange County, Fla., 256 F.3d 1095, 1118
(11th Cir. 2001)).
Not everything, therefore, that makes an employee unhappy constitutes an
adverse employment action or otherwise meets the substantiality threshold that is
applicable to discrimination actions under Title VII. Instead, for conduct to be
considered adverse, it must materially alter the employee’s compensation terms,
conditions, or privileges of employment. Bass, 256 F.3d at 1118. A materially
adverse change in the terms and conditions of employment must be more disruptive
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than a mere inconvenience or an alteration of job responsibilities. See Hartsfield v.
Miami-Dade County, 90 F. Supp. 2d 1363, 1374 (S.D. Fla. 2000) (quoting Crady v.
Liberty National Bank, 993 F.2d 132, 136 (7th Cir. 1993)), aff’d, 248 F.3d 1179 (11th
Cir. 2001).
Moreover, the employee’s subjective view of the significance and adversity of
the employer’s action is not controlling; whether the employment action is materially
adverse is determined, at least in part, by applying the reasonable person in the
circumstances standard. Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th
Cir. 2001). Indeed, the determination of whether something constitutes an adverse
employment action must be made on a case-by-case basis and, like the hostile work
environment analysis, contains both an objective and a subjective component. See
Hansen v. Perry Technologies, 206 F. Supp. 2d 1223 (S.D. Fla. 2002) (citing Doe v.
Dekalb County Sch. Dist., 145 F.3d 1441, 1448-49 (11th Cir.1998)).
Here, Ms. Prowell’s job reassignment to the JCDHR Child Support Division
was merely a temporary one occurring during the CA/N investigation. Additionally,
the record undisputably establishes that she retained the same level of pay, and there
is no indication that her level of customary benefits was reduced as a result of this
impermanent arrangement. (See Doc. 69-2 ¶ 2 (“I was . . . removed from my position
and duties as Service Supervisor at Jefferson County DHR and relegated to a non20

supervisory position in the child support office although my salary and title officially
went unchanged.”) (emphasis added)).

Under such circumstances, the court

determines that Ms. Prowell’s temporary job reassignment lacks sufficient
substantially, and as a result her prima facie case fails on that claim for this additional
reason.
(2)

Pretext

Ms. Prowell’s job reassignment race discrimination claim also fails due to her
inability to show pretext. In addressing the issue of pretext, the Supreme Court has
stated:
Thus, a plaintiff’s prima facie case, combined with sufficient evidence
to find that the employer’s asserted justification is false, may permit the
trier of fact to conclude that the employer unlawfully discriminated.
This is not to say that such a showing by the plaintiff will always
be adequate to sustain a jury’s finding of liability. Certainly there will
be instances where, although the plaintiff has established a prima facie
case and set forth sufficient evidence to reject the defendant’s
explanation, no rational factfinder could conclude that the action was
discriminatory. For instance, an employer would be entitled to judgment
as a matter of law if the record conclusively revealed some other,
nondiscriminatory reason for the employer’s decision, or if the plaintiff
created only a weak issue of fact as to whether the employer’s reason
was untrue and there was abundant and uncontroverted independent
evidence that no discrimination had occurred.
Reeves, 530 U.S. at 148, 120 S. Ct at 2109. Therefore, despite a plaintiff’s efforts to
demonstrate an issue of fact regarding the truthfulness of an employer’s asserted
21

justification for an adverse employment decision, judgment as a matter of law in favor
of the employer would still be appropriate if the record: 1) conclusively demonstrates
some other, nondiscriminatory basis for the decision; or 2) reveals only a weak issue
of fact coupled with plentiful evidence that no illegal discrimination took place.
Furthermore, the crucial examination at the pretext level is whether the employer has
honestly explained its actions, not whether the court would make the same decisions.
Ms. Prowell has not pointed to any evidence from which a reasonable jury
could conclude that the JCDHR’s explanation for temporarily reassigning her was a
pretext for (or a lie to conceal) its true motivation—illegal discrimination based upon
the shade of her skin color. More specifically, JCDHR has stated that its reason for
temporarily reassigning Ms. Prowell stemmed from a concern about having her
remain in a supervisory position within the JCDHR Child Abuse Division while she
was being investigated for reported child abuse.
To the extent that Ms. Prowell relies upon Ms. Garnett and Ms. Garner as
comparators in an effort to show pretext, such examples are ineffective under the
same analysis employed above in § IV.B.1.a.(1). Ms. Prowell also has not offered
any evidence of racially derogatory comments or jokes by Ms. Rice or Ms.
McClintock from which a reasonable trier of fact could conclude that either held a
racial bias against African-American employees. Therefore, Ms. Prowell’s race
22

discrimination claim premised upon her temporary reassignment is lacking on both
prima facie and pretext grounds and is due to be dismissed.
b.

Accrued Compensatory Time
(1)

Prima Facie Case

Ms. Prowell also claims race discrimination because she was required to use
her accrued compensatory time while on leave during the CA/N investigation.
Assuming without deciding that this action does meet the substantiality standard due
to its negative economic impact on Ms. Prowell’s accrued benefits, the claim is still
inadequate from a prima facie standpoint because of the deficient comparator
evidence upon which she relies. More specifically, how Ms. Garnett and Ms. Garner
were treated with respect to their jobs and benefits when they were being investigated
for child abuse is unhelpful to Ms. Prowell because they both worked in different
counties than she, had different supervisors than she, and served in different DHR
capacities (i.e., non-supervisory versus supervisory) than she.
Moreover, it is undisputed that during 2009 there was a state-wide effort by
DHR to zero out compensatory time balances for supervisors, like Ms. Prowell, and
reduce the accounts of non-supervisory employees, such as Ms. Garnett and Ms.
Garner. (See, e.g., Doc. 57-4 (Ms. McClintock’s deposition transcript) at 8 at 19
(“Almost every supervisor under my administration carried a comp time balance, and
23

every supervisor was made to take that comp time balance to a zero. There was no
exception.”); Doc. 70-11 at 1 (“The mandate to reduce current comp time balances
as well as the amount of comp time accrued is real and serious.”); Doc. 57-6 (Ms.
Beasley’s deposition transcript) at 8 at 19 (summarizing requirements of directive as
“[t]o reduce the supervisor’s comp time to zero and to reduce the workers’ comp time
incrementally until we get it to – below 40, 40 or below.”); Doc. 58-8 (Ms. Garnett’s
deposition transcript) at 7 (“Q. Have you ever been required to use your . . . comp
time . . . or leave time? A. Yes.”)).
Therefore, the record fails to show that Ms. Prowell was somehow singled out
when Ms. McClintock required her to use her compensatory time, because all DHR
employees were subject to a directive to either reduce or, in the case of supervisors,
entirely eliminate their compensatory time balances. Accordingly, Ms. Prowell’s
compensatory time discrimination claim is due to be dismissed on prima facie
grounds.
(2)

Pretext

Akin to her temporary reassignment, Ms. Prowell’s compensatory time claim
is alternatively due to be dismissed on pretext grounds. Ms. Prowell has not shown
pretext in Ms. McClintock’s decision that JCDRH require her to use compensatory
time while on leave, as it allowed her to still be paid during that investigative time
24

frame and supervisory employees, like Ms. Prowell, were already required to bring
their compensatory time balances down to zero. (Doc. 57-5 at 8 at 20-21). In
particular, Ms. Prowell has not shown where any white supervisory employees that
were similarly accused of child abuse were able to maintain their compensatory time
balances while such charges were being investigated.
One may debate whether such an action against Ms. Prowell was a wise
employment decision by Ms. McClintock. But the Eleventh Circuit has made it clear
that:
Federal courts do not sit as a super-personnel department that
reexamines an entity’s business decisions. No matter how medieval a
firm’s practices, no matter how high-handed its decisional process, no
matter how mistaken the firm’s managers, the ADEA [, Title VII, or §
1981] does not interfere. Rather, our inquiry is limited to whether the
employer gave an honest explanation of its behavior.
Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc) (quoting
Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991); see also Nix
v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1984) (An
“employer may fire an employee for a good reason, a bad reason, a reason based on
erroneous facts, or for no reason at all, as long as its action is not for a discriminatory
reason.”); Abel v. Dubberly, 210 F.3d 1334, 1339 n.5 (11th Cir. 2000); Mechnig v.
Sears, Roebuck & Co., 864 F.2d 1359, 1365 (7th Cir.1988) (citations omitted).

25

Plainly stated, courts “do not . . . second-guess the business judgment of employers.”
Combs v. Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir. 1997); accord
Alexander v. Futon County, Ga., 207 F.3d 1303, 1339,1341 (11th Cir. 2000); Damon
v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1361 (11th Cir. 1999) (“We
have repeatedly and emphatically held that a defendant may terminate an employee
for a good or bad reason without violating federal law. We are not in the business of
adjudging whether employment decisions are prudent or fair.”) (citation omitted).
Accordingly, Ms. Prowell’s discriminatory compensatory time claim is
unviable from both a prima facie and a pretext standpoint, and is due to be dismissed.
c.

Promotion

“In the failure-to-promote context, the prima facie case consists of showing
these elements: (1) that the plaintiff belongs to a protected class; (2) that she applied
for and was qualified for a promotion; (3) that she was rejected despite her
qualifications; and (4) that other equally or less-qualified employees outside her class
were promoted.” Wilson, 376 f.3d at 1089. Here, Ms. Prowell cannot sustain a prima
facie claim of promotional discrimination because she has not identified one position
that she applied for and for which she was qualified, much less referred to any
suitable comparators who received the sough-out position in lieu of her. (Doc. 69 at
26-30); see Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1433 (11th Cir.
26

1998) (“For example, summary judgment is appropriate against a plaintiff who fails
to demonstrate that he was qualified to perform the position for which he was
rejected.” (citing Baker v. Sears, Roebuck & Co., 903 F.2d 1515, 1520-21 (11th
Cir.1990) (per curiam))); see also Webb v. International Business Machines Corp.,
458 Fed. App’x 871, 877 (11th Cir. 2012) (“Webb failed to establish a prima facie
case regarding the permanent BUE position because Webb did not apply for the
position.”).
Alternatively, Ms. Prowell does not suggest that she was informally passed
over for a specific position for which she was suited and in which JCDHR had reason
to know her interest, but, nevertheless, selected an equally or less qualified white
employee instead. See Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 768 (11th
Cir. 2005) (“However, where an employer does not formally announce a position, but
rather uses informal and subjective procedures to identify a candidate, a plaintiff need
not show under the second prong that he applied for the position—only that the
employer had some reason to consider him for the post.”) (citing Jones v. Firestone
Tire & Rubber Co., 977 F.2d 527, 533 (11th Cir. 1992)); cf. Cox v. American Cast
Iron Pipe Co., 784 F.2d 1546, 1560 (“Teamsters holds that nonapplicants may be
entitled to relief where the employer’s clear policy of exclusion would make an
application a useless exercise.”).
27

Here, Ms. Prowell meets neither application standard and fails to address other
critical prima facie promotional elements, such as identifying the comparators who
were selected for the position(s) that she wanted. Instead, Ms. Prowell has merely
made an ineffective generalized failure to promote claim. Accordingly, summary
judgment is due to granted with respect to that race discrimination claim as well.
2.

Title VII Retaliation
a.

Prima Facie Case

“To establish a claim of retaliation under Title VII or section 1981, a plaintiff
must prove that [s]he engaged in statutorily protected activity, [s]he suffered a
materially adverse action, and there was some causal relation between the two
events.” Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1277 (11th Cir.
2008) (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct.
2405, 2410-16, 165 L. Ed. 2d 345 (2006)). DHR’s Rule 56 Motion maintains that
Ms. Prowell’s retaliation claim is fatally flawed because she has failed to identify any
statutorily protected activity on her part that would give rise to a cognizable
retaliation claim.
In responding to this contention, Ms. Prowell never identifies her purported
protected expression under Title VII. Instead, she non-responsively and repeatedly
refers to various case authorities analyzing Title VII circumstantial retaliation claims
28

without ever relating them to her situation or citing to specific evidence showing how
she engaged in protected conduct. (Doc. 69 at 29-33). Such a generalized opposition
to summary judgment is inadequate. See, e.g., Jones v. Gerwens, 874 F.2d 1534,
1538 (11th Cir. 1989) (“There is no genuine issue of material fact if the nonmoving
party fails to make a showing sufficient to establish the existence of an element
essential to that party’s case and on which the party will bear the burden of proof at
trial.” (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S. Ct. 2548,
2552-53, 91 L. Ed. 2d 265 (1986))); Eberhardt v. Waters, 901 F.2d 1578, 1580 (11th
Cir. 1990) (“[A] party opposing a properly submitted motion for summary judgment
may not rest upon mere allegation or denials of his pleadings, but must set forth
specific facts showing that there is a genuine issue for trial.” (internal quotation
marks omitted) (quoting Anderson, 477 U.S. at 256, 106 S. Ct. at 2514)).
Furthermore, Ms. Prowell’s EEOC charge filed on April 1, 2010 (Doc. 1 at Ex.
A at 3) contains no references to Title VII protected conduct on her part nor otherwise
includes allegations of retaliation. To the extent that Ms. Prowell relies upon her
EEOC administrative filing as her Title VII statutorily protected activity, because the
specific actions (i.e., her temporary reassignment, the required use of her
compensatory time, and her lack of promotions) about which she complains in this
lawsuit all pre-date the filing of her EEOC charge (as they are listed therein), they
29

cannot serve to support a viable retaliation claim, due to the absence of a causal
connection. See Griffin v. GTE Florida, Inc., 182 F.3d 1279, 1284 (11th Cir. 1999)
(“At a minimum, Griffin must show that the adverse act followed the protected
conduct; this minimum proof stems from the important requirement that ‘the
employer was actually aware of the protected expression at the time it took adverse
employment action.’” (quoting Goldsmith v. City of Atmore, 996 F.2d 1155, 1163
(11th Cir. 1993))); see also Leatherwood v. Anna’s Linens, Co., 384 Fed. App’x 853,
859 (11th Cir. 2012) (finding no causal connection when issuance of counseling
notices predates employer’s receipt of EEOC charge); cf. Goldsmith, 513 F.3 at 1278
(“In order to show the two things were not entirely unrelated, the plaintiff must
generally show that the decision maker was aware of the protected conduct at the time
of the adverse employment action.” (internal quotation marks omitted) (quoting
Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000))).
Finally, in addition to not specifying her protected activity, Ms. Prowell does
not explain what particular retaliatory actions support her retaliation claims.
Assuming that the acts are the same as those offered in support of her Title VII race
discrimination claims, then they are prima facially deficient akin to the reasoning
stated above in § IV.B.1.a.(1). Therefore, the court finds that summary judgment in
favor of ADHR and JCDHR is appropriate due to Ms. Prowell’s inability to establish
30

a prima facie case of Title VII retaliation.
b.

Pretext

Alternatively, to the extent that Ms. Prowell has established a prima facie claim
of Title VII retaliation, she has not demonstrated pretext in JCDHR’s explanation for
its handling of her employment in light of the child abuse report made about her by
her husband. In particular, the only comparators that Ms. Prowell has identified are
white non-supervisory employees who she claims received more favorable treatment
than she on the basis of race. In contrast, Ms. Prowell has not even attempted to point
to any non-charge filing supervisory employees who she maintains JCDHR treated
more preferentially under the similar circumstances of pending child abuse
allegations. Ms. Prowell also has not cited to any other evidence in an effort to show
pretext with respect to retaliation. Accordingly, summary judgment on Ms. Prowell’s
retaliation claim is due to be entered in favor of ADHR and JCDHR for the
independent reason of Ms. Prowell’s failure to demonstrate pretext.
C.

Ms. Hunter’s and Ms. Stone’s Rule 56 Motions

Ms. Prowell has sued all individual defendants in both their individual and
official capacities. As the Eleventh Circuit has explained the distinctions between
these two categories:
“Personal-capacity suits seek to impose personal liability upon a
31

government official for actions he takes under color of state law.
Official-capacity suits, in contrast, ‘generally represent only another way
of pleading an action against an entity of which an officer is an agent.’”
Id. at 165-66, 105 S. Ct. at 3105 (citations omitted) (quoting Monell v.
Department of Social Services, 436 U.S. 658, 690 n. 55, 98 S. Ct. 2018,
2035 n. 55-56 L. Ed. 2d 611 (1978)). In other words, a plaintiff in an
action against a government official in his personal capacity can recover
only against the official’s personal assets. The assets of the
governmental entity are not accessible. The reverse is true in an official
capacity lawsuit. Furthermore, “to establish personal liability in a § 1983
action, it is enough to show that the official, acting under color of state
law, caused the deprivation of a federal right.... [I]n an official-capacity
suit the entity’s ‘policy or custom’ must have played a part in the
violation of federal law.” Id. 473 U.S. at 166, 105 S. Ct. at 3105
(citations omitted).
Yet another distinction between official-capacity and
personal-capacity lawsuits is the fact that “officials sued in their
personal capacities, unlike those sued in their official capacities, may
assert personal immunity defenses such as objectively reasonable
reliance on existing law.” Hafer v. Melo, 502 U.S. 21, 112 S. Ct. 358,
362, 116 L. Ed. 2d 301 (1991). Finally, both this court and the Fifth
Circuit have held that Title VII actions are not appropriately brought
against government officials in their personal capacities. Such suits may
be brought only against individuals in their official capacity and/or the
employing entity. Busby v. City of Orlando, 931 F.2d 764, 772 (11th
Cir. 1991); see also Harvey v. Blake, 913 F.2d 226 (5th Cir. 1990).
Yeldell v. Cooper Green Hosp., Inc., 956 F.2d 1056, 1060 (11th Cir. 1992).
Against this backdrop, and having determined above that Ms. Prowell has no
viable Title VII race discrimination or retaliation claims, the court similarly concludes
that Ms. Hunter’s Rule 56 Motion and Ms. Stone’s Rule 56 Motion are both due to
be granted. In particular, neither personal capacity liability nor official capacity
32

liability can exist under § 1981 by and through § 1983 against any of the individual
defendants when the facts, taken in the light most favorable to Ms. Prowell, fail to
establish a triable issue regarding either race discrimination or retaliation. See, e.g.,
Cross v. Alabama, 49 F.3d 1490, 1507-08 (11th Cir.1995) (“When section 1983 is
used as a parallel remedy for [a] violation of . . . Title VII . . ., the elements of the two
causes of action are the same.”); Bryant v. Jones, 575 F.3d 1281, 1296 n. 20 (11th
Cir. 2009) (“We pause to note that discrimination claims, including hostile work
environment claims, brought under the Equal Protection Clause, 42 U.S.C. § 1981,
or Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, are subject to the
same standards of proof and employ the same analytical framework.”). Accordingly,
summary judgment is due to be entered in favor of Ms. Hunter, Ms. Beasley, Ms.
McClintock, Ms. Rice, and Ms. Stone both in their individual and official capacities.
V.

CONCLUSION
For the reasons stated above, Defendants’ Prowell Motion is due to be granted

in part and termed as moot in part, Defendants’ Daniel Motion is due to be termed as
moot, and Defendants’ Pearson Motion is due to be granted in part and termed as
moot in part. Further, DHR’s Rule 56 Motion, Ms. Hunter’s Rule 56 Motion, and
Ms. Stone’s Rule 56 Motion, are all due to be granted, and Ms. Prowell’s lawsuit is
due to be dismissed.
33

Finally, the court notes that Defendants have requested oral argument in one
of the reply briefs. (Doc. 79 ¶ 5). Because the court finds the issues presented on
summary judgment to be straightforward, that request is due to be denied. The court
will enter a separate order consistent with this memorandum opinion.
DONE and ORDERED this the 5th day of September, 2012.

VIRGINIA EMERSON HOPKINS
United States District Judge

34