Williams v. Roper et al
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 11/8/2013. (AVC)
2013 Nov-08 PM 04:49
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
) Case No.: 2:11-CV-3635-VEH
CITY OF BIRMINGHAM,
ALABAMA, a Municipal
Corporation of the State of Alabama, )
INTRODUCTION AND PROCEDURAL HISTORY
Plaintiff Toni Williams (“Ms. Williams”) initiated this job discrimination
lawsuit on October 14, 2011. (Doc. 1). Ms. Williams filed a second amended
complaint (Doc. 23) on February 29, 2012, and asserted five counts arising under the
Age Discrimination in Employment Act (“ADEA”).1
Pending before the court is Defendant City of Birmingham’s (“COB”) Motion
for Summary Judgment (Doc. 32) (the “Motion”), filed on July 15, 2013. The parties
Count one is for conspiracy to deprive ADEA rights; count two is for deliberate
indifference and failure to prevent violation of ADEA rights; count three is for failure to accept
proper issues; count four is for ADEA retaliation; and count five is for continuing violation of
ADEA rights. (Doc. 23 at 7-10).
have briefed the Motion (see Docs. 33, 35, 38), and it is now under submission. For
the reasons explained below, the Motion is due to be granted.
Ms. Williams is employed by the COB Police Department and holds the
position of Administrative Assistant I. AF No. 1.1;3 AF No. 1.2. An Administrative
Assistant I is primarily responsible for performing routine clerical tasks. AF No. 3.
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.
The designation “AF” stands for admitted fact and indicates a fact offered by the COB that
Ms. Williams has admitted in her written submissions on summary judgment, in her sworn
testimony, or by virtue of any other evidence offered in support of her case. Under appendix II of
the court’s uniform initial order (Doc. 2) entered on October 17, 2011, “[a]ll statements of fact must
be supported by specific reference to evidentiary submissions.” (Id. at 16). For Ms. Williams, more
specifically, this means that “[a]ny statements of fact that are disputed by the non-moving party must
be followed by a specific reference to those portions of the evidentiary record upon which the dispute
is based.” (Id. at 17). Consequently, whenever Ms. Williams has inadequately asserted a dispute
over a fact that the COB has otherwise substantiated with an evidentiary citation, the court has
reviewed the cited evidence and, if it in fact fairly supports the COB’s factual assertion, has accepted
the COB’s fact. On the other hand, whenever Ms. Williams has adequately disputed a fact offered
by the COB, the court has reviewed the evidence cited by Ms. Williams and, if it in fact fairly
supports Ms. Williams’s factual assertion, has accepted Ms. Williams’s version. The court’s
numbering of admitted facts (e.g., AF No. 1) corresponds to the numbering of the COB’s statement
of undisputed facts as set forth in Doc. 33 and responded to by Ms. Williams in Doc. 35. A number
following a decimal point corresponds to the particular sentence within the numbered statement of
facts. For example, AF No. 1.2 indicates that the second sentence of paragraph 1 of the COB’s
statement of undisputed facts is the subject of the court’s citation to the record. Any other facts
referenced by the parties that require further clarification are dealt with later in the court’s opinion.
In her capacity as an Administrative Assistant I, Ms. Williams is currently
assigned to the COB Jail. AF No. 1.2. Prior to being assigned to this location, Ms.
Williams was working as an Administrative Assistant I in the Data Entry Unit of the
Records Division of the COB Police Department. AF No. 2.
Ms. Williams filed an EEOC charge of age discrimination against the COB on
August 6, 2010. (Doc. 23-9 at 1 (“EXHIBIT C”)).4 Ms. Williams contends that the
decision to transfer her to the COB Jail was in retaliation for her filing this EEOC
By way of an uncontested affidavit, Deputy Chief W. Ray Tubbs (“Deputy
Chief Tubbs”) has testified that he “met with Ms. Williams and asked her if she was
willing to transfer to a new location within the police department.” (Doc. 33-5 at 2).5
Deputy Chief Tubbs has further indicated that only after “Ms. Williams [had] agreed
to the transfer” did he “then recommend to Chief A. C. Roper that Ms. Williams be
transferred to the COB Jail.” Id.
Deputy Chief Tubbs also has clarified that, as a result of Ms. Williams’s
transfer, “[t]here was no change to her [job] classification; she was simply reassigned
from the Administrative Assistant I position in the Date Entry Unit of the Record
Any page references to Doc. 23-9 correspond with the court’s CM/ECF numbering system.
Any page references to Doc. 33-5 correspond with the court’s CM/ECF numbering system.
Division of the Police Department to the Administrative Assistant I at the [COB] Jail;
and there was no change in her pay grade.” (Doc. 33-5 at 3).
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 (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, 1274 (11th Cir. 2006) (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
“Retaliation against an employee who engages in statutorily protected activity
is barred under both Title VII and § 1981.” Chapter 7 Trustee v. Gate Gourmet, Inc.,
683 F.3d 1249, 1257-58 (11th Cir. 2012). Further, in Burlington Northern & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006), the
Supreme Court abrogated prior circuit law, including that of the Eleventh Circuit,
limiting anti-retaliation claims under Title VII to claims involving actions that are
related to employment or that occur at the workplace. Id. at 2409. Rather, postBurlington Northern, the recognized elements of a claim of retaliation under Title VII
or § 1981 are that the plaintiff: (1) “engaged in statutorily protected activity”; (2)
“suffered a materially adverse action”; and (3) “there was a causal connection
between the protected activity and the adverse action.”
As the Eleventh Circuit has explained the standard for establishing the second
prima facie element to a Title VII retaliation claim:
[T]he Supreme Court has defined an adverse employment action in the
context of a retaliation claim as an action by an employer that is
[“]harmful to the point that it could well dissuade a reasonable worker
from making or supporting a charge of discrimination.”
Wallace v. Georgia Dept. of Transp., 212 F. App’x 799, 802 (11th Cir. 2006)
(quoting Burlington Northern, 548 U.S. at 57, 126 S. Ct. at 2409). The Eleventh
Circuit has clearly recognized this abrogation, and has consistently applied the now
seven year old Burlington Northern standard in retaliation cases. See Gate Gourmet,
683 F.3d at 1258 (citing collection of cases).
Additionally, several unpublished decisions by the Eleventh Circuit have
indicated that the Burlington Northern Title VII material adversity standard also
applies to retaliation claims arising under the ADEA. See, e.g., Brown v. Northside
Hosp., 311 F. App’x 217, 224 (11th Cir. 2009) (applying Burlington Northern to an
ADEA retaliation claim); Howell v. Compass Group, 448 F. App’x 30, 34 (11th Cir.
2011) (same); see also 11th Cir. Pattern 4.22 (Retaliation–ADEA, ADA and FLSA)
Ms. Williams’s Uncontested Claim(s)
The COB’s Motion seeks summary judgment on all of Ms. Williams’s claims.
As the COB points out in its amended reply (Doc. 38 at 1-2),6 Ms. Williams’s
opposition brief is significantly limited in its scope. Specifically, her brief only
challenges the entry of summary judgment with respect to count four of her second
amended complaint for retaliation under the ADEA.
Therefore, Ms. Williams has abandoned counts one, two, three, and five of her
second amended complaint. 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 Int’l, Inc., 998 F.
Supp. 1473, 1477 (N.D. Ga. 1998) (finding unaddressed claim abandoned); see also
Any page references to Doc. 38 correspond with the court’s CM/ECF numbering system.
Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (“We
decline to exercise our discretion to entertain this argument which was not fairly
presented to the district court.”); Coal. 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); Hudson v.
Norfolk S. Ry. Co., 209 F. Supp. 2d 1301, 1324 (N.D. Ga. 2001) (“When a party fails
to respond to an argument or otherwise address a claim, the Court deems such
argument or claim abandoned.”); cf. Road Sprinkler Fitters Local Union No. 669 v.
Indep. 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
Accordingly, the COB’s Motion is due to be granted with respect to these
Ms. Williams’s Contested Claim
Ms. Williams does oppose the entry of summary judgment on her ADEA
retaliation claim–count four of her amended pleading. More specifically and as
indicated above, Ms. Williams maintains that the COB made a change in her job
assignment from the Records Division to the COB Jail in retaliation for her protected
activity of filing an EEOC charge.
In its reply, the COB contends that it is entitled to summary judgment on this
claim based on the following reasoning:
As to Count Four, summary judgment is due to be granted
because Plaintiff has failed to make a prima facie case of retaliation and
Defendant has shown that Plaintiff’s change of assignment was not in
retaliation to Plaintiff’s EEOC filing, but rather to fill a legitimate
business need. Defendant has also shown that out of an abundance of
caution, it went beyond that which is required when making a
management decision, such as change in assignment, by meeting with
Plaintiff to get her input prior to making the change in assignment. It
was only after Plaintiff agreed to the change in assignment that
Defendant moved forward with the change in assignment.
(Doc. 38 at 5 ¶ 9).
In Burlington Northern, the plaintiff was involuntarily reassigned from forklift
duty to the more demanding “standard track laborer tasks” after she complained about
sexual harassment by her immediate supervisor. Burlington Northern, 548 U.S. at 58,
126 S. Ct. at 2409. As the Supreme Court analyzed this unilateral change in the
plaintiff’s primary duties:
First, Burlington argues that a reassignment of duties cannot
constitute retaliatory discrimination where, as here, both the former and
present duties fall within the same job description. Brief for Petitioner
24–25. We do not see why that is so. Almost every job category
involves some responsibilities and duties that are less desirable than
others. Common sense suggests that one good way to discourage an
employee such as White from bringing discrimination charges would be
to insist that she spend more time performing the more arduous duties
and less time performing those that are easier or more agreeable. That
is presumably why the EEOC has consistently found “[r]etaliatory work
assignments” to be a classic and “widely recognized” example of
“forbidden retaliation.” 2 EEOC 1991 Manual § 614.7, pp. 614–31 to
614–32; see also 1972 Reference Manual § 495.2 (noting Commission
decision involving an employer's ordering an employee “to do an
unpleasant work assignment in retaliation” for filing racial
discrimination complaint); Dec. No. 74–77, CCH EEOC Decisions
(1983) ¶ 6417 (1974) (“Employers have been enjoined” under Title VII
“from imposing unpleasant work assignments upon an employee for
To be sure, reassignment of job duties is not automatically
actionable. Whether a particular reassignment is materially adverse
depends upon the circumstances of the particular case, and “should be
judged from the perspective of a reasonable person in the plaintiff's
position, considering ‘all the circumstances.’ ” Oncale, 523 U.S., at 81,
118 S. Ct. 998. But here, the jury had before it considerable evidence
that the track laborer duties were “by all accounts more arduous and
dirtier”; that the “forklift operator position required more qualifications,
which is an indication of prestige”; and that “the forklift operator
position was objectively considered a better job and the male employees
resented White for occupying it.” 364 F.3d, at 803 (internal quotation
marks omitted). Based on this record, a jury could reasonably conclude
that the reassignment of responsibilities would have been materially
adverse to a reasonable employee.
Burlington Northern, 548 U.S. at 70-71, 126 S. Ct. at 2416-17 (emphasis added).
Because Ms. Williams has not provided proof of a materially adverse action
consistent with the contours delineated in Burlington Northern, the COB is correct
that she is unable to make out a prima facie case of ADEA retaliation. More
specifically, no reasonable jury could conclude that her transfer to the COB Jail was
materially adverse because (1) she consented to the proposed reassignment prior to
it occurring; (2) she suffered no economic or appreciable non-monetary detriment
(e.g., such as a loss of prestige) as a result of this transfer; and (3) she has failed to
identify any other evidence which even suggests, much less sufficiently shows, how
this transfer “well might have ‘dissuaded a reasonable worker from making or
supporting a charge of discrimination.’” Burlington Northern, 548 U.S. at 68, 126
S. Ct. at 2415 (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006));
see also Burlington Northern, 548 U.S. at 68, 126 S. Ct. at 2415 (“We speak of
material adversity because we believe it is important to separate significant from
trivial harms.”) (emphasis in original).
Accordingly, summary judgment in favor of the COB is due to be entered on
Ms. Williams’s contested claim for ADEA retaliation.
Ms. Williams’s Newly Asserted Claim(s)
The COB additionally indicates that Ms. Williams appears to assert some type
of disparate treatment claim under Title VII in her opposition brief that is not
included in her amended complaint, as that complaint arises exclusively under the
ADEA. (Doc. 38 at 5-6 ¶ 10); (see also Doc. 23 at 1 ¶ 2 (“[T]his civil action seeks
to secure protection of, and redress the deprivation of, rights secured by [the] ADEA,
providing for injunctive and other relief against discrimination and retaliation.”)). To
the extent that Ms. Williams has attempted to assert any new claims in her opposition
brief, the Eleventh Circuit has made it clear that “[a] plaintiff may not amend her
complaint through argument in a brief opposing summary judgment.” Gilmour v.
Gates, McDonald and Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (citing Shanahan
v. City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996)); see also Flintlock Const.
Services, LLC v. Well-Come Holdings, LLC, 710 F.3d 1221, 1228 (11th Cir. 2013)
(“This court’s precedent foreclosed Well–Come’s attempt to amend its complaint at
the summary judgment stage without seeking leave of court pursuant to Rule
Accordingly, the COB’s Motion is due to be granted in this regard as well.
Therefore, COB’s Motion is due to granted, and Ms. Williams’s case is due to
be dismissed with prejudice. The court will enter a separate order consistent with this
DONE and ORDERED this the 8th day of November, 2013.
VIRGINIA EMERSON HOPKINS
United States District Judge
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