Adams v. Housing Authority of the City of Bessemer Alabama
MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 1/21/2015. (AVC)
2015 Jan-21 PM 03:54
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
HOUSING AUTHORITY OF
THE CITY OF BESSEMER,
MEMORANDUM OF OPINION
Before the Court is Defendant Housing Authority of the City of Bessemer,
Alabama’s (“BHA”) Motion for Summary Judgment. (Doc. 25.) Plaintiff Tara Adams
(“Adams”) brought this civil rights action against BHA, alleging gender
discrimination and retaliatory conduct in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). Despite being specifically reminded
by the Court to provide a response and being granted sua sponte an extension of time
in which to file a response, Adams, acting pro se, has failed to file any response to
BHA’s motion. Therefore, the Court’s consideration of the motion is based solely on
BHA’s motion and the Court’s own review of the attached evidentiary material and
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examination of the relevant law. For the reasons discussed below, the motion is due
to be granted.
Adams, a female, was hired by BHA as an assistant property manager for
Brasswell Homes on October 24, 2006. In February of 2012, Adams was promoted to
interim property manager at Southside Homes, after being recommended for that
position by BHA’s Director of Property Management, Julius Howard (“Howard”).
Adams’ offer letter stated that her promotion would be for a three month interim
period, and would then be reevaluated.
Adams was then transferred to Sunset Homes, where she also held the position
of property manager, and remained at that location from April 2012 to January 2013.
Adams swapped positions with Jeffrey Wheeler (“Wheeler”), BHA’s only male
property manager, who was transferred from Sunset to replace her at Southside. On
June 12, 2012, Duffey sent Adams a letter extending her interim period for another 60
days. In January of 2013, Adams was transferred back to Southside Homes, and
Adams has not disputed BHA’s statement of undisputed facts. When a party fails to
properly address another party’s statement of facts, the Court may treat these facts as undisputed.
Fed. R. Civ. P. 56(e)(2). The Court thus generally accepts BHA’s statement of material facts.
However, in recognition of Adam’s pro se status, the Court has also looked to Adam’s deposition
testimony and other evidentiary material to supplement the facts supplied by the BHA.
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Wheeler was transferred to another property.
On June 10, 2013, Adams filed a complaint against BHA with the Equal
Employment Opportunity Commission (“EEOC”). Adams was then terminated on
June 13, 2013 for insubordination and lack of cooperation. Adams returned to the
EEOC to sign her complaint on June 17, 2013. Adams’ EEOC claim was filed within
180 days of the last allegedly discriminatory act, and her suit was filed on October 30,
2013, within 90 days of receipt of her right-to-sue letter.
Alleged Discrimination and Insubordination
Adams’ first supervisor at the BHA was Toni Williams (“Williams”), another
woman. Adams believed that Williams routinely violated company policy, and verbally
reported Williams for these violations a number of times. In July of 2009, Williams
placed a verbal warning for insubordination in Adams’ personnel file; Adams denies
ever being told about the warning and denies the insubordination. Adams received no
further punishment or reprimand at that time.
In October of 2009, Mary Fortson (“Fortson”), Williams’ supervisor, sent
Adams an “Employee Notification of Intent to Separate” memo, which stated that
Adams had expressed dissatisfaction with the BHA and was conducting a search for
outside employment using BHA computers. Adams testified that she had actually
expressed dissatisfaction only with Williams’ improper conduct. Adams admits that
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she used BHA computers to investigate a position in Birmingham with the
Department of Housing and Urban Development, but says that other BHA employees
did the same thing. The memo stated that the matter would be “assessed during the
next 30 days,” and Adams recalls speaking to Fortson about the problem being
“squashed” and them “moving on.” (Doc. 25-1 at 19.)
Shortly after her promotion to interim property manager in February of 2012,
Adams sent an email to several people within BHA, including Howard and Sharon
Duffey (“Duffey”) from Human Resources. In that email, Adams complained that
“Malcolm,” an outside landscaping vendor, had mentioned to her that her promotion
was on a three-month trial basis. Adams wrote that she was “disappointed in the lack
of professionalism” in disclosing the terms of her promotion, and asked that “the
same professionalism and respect given to other employees be given to me.” (Doc. 252 at 28.)
After receiving the June 12, 2012 email from Duffey extending her interim
positing for 60 days, Adams sent Howard an email asking for more details of the
interim nature of her position. She also asked if she was being “singled out” or treated
with the same procedure as other BHA employees who had been promoted. Adams
wrote that she was having a “hard time understanding what looks to me like I am being
picked on or discriminated against for some reason.” (Doc. 25-4 at 2.) Adams also
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copied a real estate broker in Birmingham with the email, because Adams trusted the
broker and wanted an outside witness to her complaint. A meeting was held between
Adams, Howard, and Duffey following the email, where Adams reiterated that she felt
she was being discriminated against for some reason. Following the meeting, Howard
issued Adams a written warning for violating company policy by copying a non-BHA
employee on her email.
Adams has expressed her belief that her transfer to Sunset in itself was
discriminatory, because the property had previously flooded and had numerous
mildew and mold problems. The previous manager, Wheeler, also managed Sunset
under those conditions.
Adams also believes that she was experiencing discrimination during her time
as property manager at the BHA because she was not provided with the same training
as other managers. Adams was provided with no formal training to be a property
manager. She was not sent to a class to enable her to receive a public housing
designation that all other BHA manager’s possessed, and was not given the
opportunity to shadow another property manager, as some other employees had been
given after their promotions. She also states that she was not given proper support
when she asked Howard for advice on how to deal with certain issues. Adams also
believes that the rules that applied to Wheeler, BHA’s sole male property manager,
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were different than the ones that applied to her, as evidenced by the fact that Wheeler
did not do his job but was not fired.
Adams verbally complained about discrimination several times to Lynn Gilbert
(“Gilbert”), BHA’s maintenance supervisor. Gilbert “agreed that [Adams] was being
handled differently,” although he “might not have” specifically agreed that Adams
was being discriminated against. (Doc. 25-2 at 2.) Adams specifically told Gilbert that
she believed she was being discriminated against because she was a woman. (Doc. 25-2
at 2.) On at least two occasions, Gilbert told Adams that she should take her
complaints to the EEOC.
At some point in 2013, Adams had a meeting with Howard where she told him
that she felt he was discriminating against her. Howard asked if she had a problem with
him, and Adams replied by asking if he had a problem with her. The two then “just
kind of [sat] there in the office staring at each other.” (Doc. 25-2 at 6.) Finally, on June
7, 2013, Plaintiff had a meeting with Howard and Duffey. Adams again stated that she
felt she was being discriminated against, and Howard then asked her if she was
accusing him of discrimination, to which Adams responded “I will.” (Doc. 25-2 at 6.)
Adams did not inform Howard or Duffey that she believed she was being discriminated
against because she was a woman at that meeting or at any other time; she only ever
said she was being discriminated against “for some reason.” On that same day, Adams
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told Gilbert that she intended to file a complaint with the EEOC. Following the
meeting, Howard recommended to Alphonso Patrick (“Patrick”), executive director
of BHA, that Adams be terminated.
On June 12, 2013, Howard issued a written reprimand against Adams for
rudeness during the June 7 meeting, also admitting that Adams had accused Howard
of being rude during the meeting and acknowledging that Adams had expressed a belief
that she was being discriminated against for some reason during that meeting. Adams
was terminated on June 13, 2013. Both Howard, who recommended that Adams be
fired, and Patrick, who made the ultimate decision to fire Adams, have stated that they
were unaware of Adams’ EEOC complaint when they fired her, and that she was fired
solely for insubordination and lack of cooperation. (Doc. 25-5 at 4; 25-6 at 3.)
Standard of Review
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). A fact is “material” if it “might affect the outcome of the
suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). There is a “genuine dispute” as to a material fact “if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Id. The trial judge
should not weigh the evidence but must simply determine whether there are any
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genuine issues that should be resolved at trial. Id. at 249.
In considering a motion for summary judgment, trial courts must give deference
to the non-moving party by “considering all of the evidence and the inferences it may
yield in the light most favorable to the nonmoving party.” McGee v. Sentinel Offender
Services, LLC, 719 F.3d 1236, 1242 (11th Cir. 2013) (citing Ellis v. England, 432 F. 3d
1321, 1325 (11th Cir. 2005)). In making a motion for summary judgment, “the moving
party has the burden of either negating an essential element of the nonmoving party’s
case or showing that there is no evidence to prove a fact necessary to the nonmoving
party’s case.” Id. Although the trial courts must use caution when granting motions
for summary judgment, “[s]ummary judgment is properly regarded not as a disfavored
procedural shortcut, but rather as an integral part of the Federal Rules as a whole.”
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
Adams argues in her complaint that she was discriminated against on the basis
of her gender because she was treated differently than similarly situated male
Title VII prohibits an employer from “discriminat[ing] against any individual
with respect to [her] compensation, terms, conditions, or privileges of employment,
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because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e-2(a)(1). “A plaintiff may establish a claim of illegal disparate treatment
through either direct evidence or circumstantial evidence.” Wilson v. B/E Aerospace,
Inc., 376 F.3d 1079, 1085 (11th Cir. 2004). Under Eleventh Circuit precedent, “direct
evidence is composed of only the most blatant remarks, whose intent could be nothing
other than to discriminate on the basis of some impermissible factor.” Schoenfeld v.
Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999) (internal citations omitted). There is no
such direct evidence of discrimination in this case, and therefore Adams must prove
her case, if at all, using circumstantial evidence.
When a plaintiff “attempts to prove intentional discrimination in violation of
Title VII using circumstantial evidence, we apply the now familiar shifting burden
framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Dep’t of Community Affairs
v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).” Id. at 1267. The
plaintiff must first establish a prima facie case of discrimination. Id. If the plaintiff can
satisfy this burden, an inference of discrimination arises. Id. The burden is then shifted
to the employer to refute this inference by articulating a “legitimate, nondiscriminatory reason for its action.” Id. If the employer articulates a legitimate
reason, “then the burden shifts back to the plaintiff to show that the proffered reason
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is really pretext for unlawful discrimination.” Id. The offered reason is not a pretext
for discrimination unless the plaintiff can show “both that the reason was false, and
that the discrimination was the real reason.” Springer v. Convergys Customer Mgmt.
Grp., 509 F.3d 1344, 1349 (11th Cir. 2007) (quoting Brooks v. Cty. Comm’n of Jefferson
Cty., 446 F.3d 1160, 1163 (11th Cir. 2006)) (emphasis in original).
To make out a prima facie case, a plaintiff must show: “(1) she is a member of
a protected class; (2) she was qualified for her job; (3) she was subjected to an adverse
employment action; and (4) her employer treated similarly situated employees outside
her class more favorably.” Curtis v. Broward Cty., 282 F. App’x 882, 883 (citing
Maynard v. Bd. of Regents of Div. Of Univs of Fla. Dep’t of Educ., 342 F.3d 1281, 1289
(11th Cir. 2003)). An adverse employment action may be an ultimate employment
decision such as termination. Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008).
To qualify as an adverse employment action, anything less than an ultimate
employment decision must “in some substantial way, alter the employee’s
compensation, terms, conditions, or privileges of employment, deprive him or her of
employment opportunities, or adversely affect his or her status as an employee.” Id.
(citations omitted). To meet the “similarly situated” requirement, a plaintiff must
show that “[she] is similarly situated in all relevant respects to the non-minority
employee.” Silvera v. Orange Cty. Sch. Bd., 244 F.3d 1253, 1259 (11th Cir. 2001). When
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there are accusations of discriminatory discipline, the “quantity and quality of the
comparator’s misconduct [must] be nearly identical to prevent courts from secondguessing employers’ reasonable decisions and confusing apples with oranges.” BurkeFowler v. Orange Cty., Fla., 447 F.3d 1319, 1323 (11th Cir. 2006) (quoting Maniccia v.
Brown, 171 F.3d 1364, 1368 (11th Cir. 1999)).2
It appears from Adams’ gender discrimination complaint that she is alleging
discrimination because other male employees were treated differently when it comes
to discipline. There is evidence that several male maintenance staff members were
written up for acts of insubordination and lack of cooperation, but received only
suspensions, reprimands, or even no discipline, while Adams was terminated.
BHA does not argue that Adams has not satisfied the first two elements of her
prima facie case. Adams alleges some misconduct in the issuance of verbal discipline
by Toni Williams in 2009, but this does not appear to rise to the level of an “adverse
employment action” under the Crawford standard because it does not appear to have
had a substantial effect on her employment. However, Adams eventual termination for
insubordination was clearly an adverse employment action and therefore the question
The “nearly identical” misconduct requirement has been called into question by Alexander
v. Fulton Cty., 207 F.3d 1303, 1333-34 (11th Cir. 2000), however this Court is “bound to follow
Maniccia’s ‘nearly identical’ standard rather than the standard articulated in Alexander because when
a later panel decision contradicts an earlier one, the earlier panel decision controls.” Burke-Fowler,
447 F.3d at 1323 n.2.
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is whether she was treated less favorably than a similarly situated male employee.
There is not sufficient evidence in the record that the male employees who were
written up for insubordination and lack of cooperation were similarly situated to
Adams under the Maniccia standard. The only evidence provided was that several male
employees received write ups for insubordination and were not terminated; there is no
evidence concerning what conduct was involved in these instances of insubordination.
Therefore the Court does not have enough evidence to determine whether the
“quantity and quality of the comparator’s misconduct” is nearly identical to Adams’.
Because Adams has not shown that these comparators are “similarly situated,” she has
not met her burden of showing a prima facie case of discrimination, and therefore her
gender discrimination claim is due to be dismissed.
Adams also claims that she was fired in retaliation for making complaints about
discrimination in violation of Title VII.
Title VII prohibits retaliation against an employee “because [she] has opposed
any practice made an unlawful employment practice by this subchapter, or because
[she] has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3. To
establish a prima facie case of retaliation under Title VII, a plaintiff must show that
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“(1) she engaged in an activity protected under Title VII; (2) she suffered an adverse
employment action; and (3) there was a causal connection between the protected
activity and the adverse employment action.” Crawford, 529 F.3d at 970 (citing
Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001)). To establish a
causal connection, “a plaintiff need only show that the protected activity and the
adverse action were not wholly unrelated.” Brungart v. BellSouth Telecomms., Inc., 231
F.3d 791, 799 (11th Cir. 2000) (quoting Clover v. Total Sys. Servs., Inc., 176 F.3d 1346,
1354 (11th Cir. 1999)) (internal quotations omitted). To show that they 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.” Id.
(citing Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993)).
BHA correctly points out that there is no evidence of a causal connection
between Adams’ complaints of discrimination and her termination. While Adams did
complain to Howard and Duffey that she felt she was being “discriminated” against,
Adams did not tell Howard and Duffey that she believed she was being discriminated
against because she was a woman or a member of any protected class. Adams stated
that she did tell Gilbert that she was being discriminated against because she was a
female, but there is no evidence that Gilbert ever communicated that information to
either Howard or Patrick, the two people involved in the decision to fire Adams. While
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Adams did go to the EEOC to make a complaint against BHA shortly before her
termination, there is no evidence that Howard or Patrick were aware of this when they
made the decision to fire her. Howard and Patrick have submitted affidavits stating
that they were both unaware of any complaints made by Adams to either BHA or the
EEOC concerning gender discrimination. Therefore, Adams has also failed to make
out a prima facie case of unlawful retaliation, and this claim is due to be dismissed.
For the foregoing reasons, BHA’s motion for summary judgment (Doc. 25) is
due to be GRANTED, because Adams has failed to make out a prima facie case of
either gender discrimination or retaliation in violation of Title VII.
A separate order will be entered.
Done this 21st day of January 2015.
L. SCOTT COOGLER
UNITED STATES DISTRICT JUDGE
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