Ellison v. Birmingham, Alabama, City of, The
MEMORANDUM OPINION. Signed by Judge R David Proctor on 4/18/2016. (AVC)
2016 Apr-18 PM 02:55
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
THE CITY OF BIRMINGHAM,
Case No.: 2:14-CV-00154-RDP
This matter is before the court on Defendant’s Motion for Summary Judgment. (Doc. #
20). The Motion has been fully briefed. (Docs. # 21, 22 and 25).
Plaintiff’s Complaint alleges that Defendant retaliated against her in violation of Title
VII. 42 U.S.C. § 2000e et seq. On April 14, 2014, the court ruled on Defendant’s Motion to
Dismiss. (Doc. # 11). In that Order, the court dismissed Counts Two through Eight, and allowed
Counts One and Nine to proceed. Defendant has now moved for summary judgment on those
two remaining claims.
Summary of Relevant Facts1
The City of Birmingham (“City”) is a municipal corporation under the laws of the State
of Alabama. (Doc. # 1 ¶ 8). The City has an EEO policy and police officers, supervisors and
employees are trained on the policy. (Doc. # 21-1 ¶ 3).
If facts are in dispute, they are stated in the manner most favorable to the non-movant, and all reasonable
doubts about the facts have been resolved in favor of the non-movant. See Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1115 (11th Cir. 1993); Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002).
These are the “facts” for summary judgment purposes only. They may not be the actual facts that could be
established through live testimony at trial. See Cox. v. Adm’r U.S. Steel & Carnegie, 17 F.3d 1386, 1400 (11th Cir.
1994). Asserted “facts” that are not facts at all will be disregarded. Carter v. Three Springs Residential
Treatment, 132 F.3d 635, 642 (11th Cir. 1998) (conclusory allegations without specific supporting facts have no
Carrie Ellison is an African-American Female. She began her employment with the City
on May 14, 1994, in the position of Administrative Typist. Plaintiff was promoted to Latent
Print Examiner on August 14, 2009. (Doc. # 1¶ 9, Doc. # 21-1).
On December 5, 2011, Plaintiff alleges she was subjected to workplace harassment when
her co-worker, Anita Patterson, called her the “devil” for “keeping up mess.” (Doc. # 1 & 21).
Plaintiff was also called “baby duck” for “following up behind momma duck,” referring to a
friend of Plaintiff’s. (Doc. # 1 & 21). Plaintiff was also accused of damaging a co-worker’s
angel figure that was hanging on the wall. (Doc. # 1 & 21).
On December 7, 2011, Plaintiff complained to her supervisor, Wanda Crawford, that she
was being harassed at work. (Doc. # 1 & 9, 23; Doc. # 22-8 at 6). When asked in what manner
she was being harassed, Plaintiff explained that she was “[d]eemed as a troublemaker. Using my
husband’s position to get what I want is exactly what was stated to me.” (Doc. # 22-8 at 6).
On December 7, 2012, Plaintiff was demoted by Chief of Police AC Roper2 from the
position of Latent Print Examiner back to Administrative Assistant for making fingerprint
identification mistakes. (Doc. # 21-1). Roper determined that Plaintiff had committed her fifth
error in a twelve month period which demonstrated an inability to operate or function as a LPE.
(Doc. # 21-1).3
On May 16, 2013, Plaintiff filed an EEOC charge alleging retaliation regarding her
demotion. (Doc. # 1-1).
Roper is the Chief of Police for the City of Birmingham Police Department. He is an African-American
male. (Doc. # 21-1).
Plaintiff has not disputed that she made the errors with which she was charged. Instead, she argues that
she had not been properly trained, despite having held the position for three years at the time in question. (Doc. # 22
Plaintiff also appealed her demotion to the Personnel Board of Jefferson County of
Alabama. (Doc. # 21-2). A hearing was held on her appeal on December 19, 2013 and March
27, 2014. (Doc. # 21-2 at 8). On May 12, 2014, Lee Winston, on behalf of the Personnel Board
of Jefferson County of Alabama, upheld Plaintiff’s demotion. (Doc. # 21-2 at 8-12).
On June 14, 2014 Plaintiff resigned her employment with the City of Birmingham. (Doc.
# 22 at 2).
Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The party asking for summary judgment always bears the initial responsibility of
informing the court of the basis for its motion and identifying those portions of the pleadings or
filings that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477
U.S. at 323. Once the moving party has met its burden, the Rule requires the non-moving party
to go beyond the pleadings and -- by pointing to affidavits, or depositions, answers to
interrogatories, and/or admissions on file -- designate specific facts showing that there is a
genuine issue for trial. See id. at 324.
The substantive law will identify which facts are material and which are irrelevant. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts about the facts
and all justifiable inferences are resolved in favor of the non-movant. 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, 477 U.S. at 248.
When faced with a “properly supported motion for summary judgment, [the non-moving
party] must come forward with specific factual evidence, presenting more than mere
allegations.” Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997). As Anderson v.
Liberty Lobby, Inc. teaches, Rule 56(c) “does not allow the plaintiff to simply rest on his
allegations made in the complaint; instead, as the party bearing the burden of proof of trial, he
must come forward with at least some evidence to support each element essential to his case at
trial.” Anderson, 477 U.S. at 252. “Mere allegations” made by a plaintiff are insufficient. Id.
Summary judgment is mandated “against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. “Summary judgment may be
granted if the non-moving party’s evidence is merely colorable or is not significantly probative.”
Sawyer v. Southwest Airlines Co., 243 F. Supp.2d 1257, 1262 (D.Kan. 2003) (citing Anderson,
477 U.S. at 250-51).
“[A]t the summary judgment stage the judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Anderson, 477 U.S. at 249. “Essentially, the inquiry is ‘whether the evidence presents a
sufficient disagreement to require submission to the jury or whether it is so one sided that one
party must prevail as a matter of law.’” Sawyer, 243 F. Supp.2d at 1262 (quoting Anderson, 477
U.S. at 251-52); see also LaRoche v. Denny’s, Inc., 62 F. Supp.2d 1366, 1371 (S.D. Fla. 1999)
(“The law is clear … that suspicion, perception, opinion, and belief cannot be used to defeat a
motion for summary judgment.”).
Two claims remain pending from Plaintiff’s Complaint: (1) Count One alleges retaliation
in violation of Title VII based on Plaintiff’s demotion (Doc. # 1 at && 66-71); and (2) Count
Nine alleges a retaliatory hostile environment claim. (Doc. # 1 at && 86-87).
Plaintiff’s Retaliation Claim
Count One of Plaintiff’s Complaint alleges that her December 15, 2012 demotion was
retaliatory. Title VII’s anti-retaliation provision provides that:
It shall be an unlawful employment practice for an employer to discriminate
against any of his employees or applicants for employment... because [the
employee] has opposed any practice made an unlawful employment practice by
this subchapter, or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this
42 U.S.C. § 2000e-3(a) (1982).
To establish a prima facie case of retaliation, a plaintiff must show that (1) she engaged
in a statutorily protected expression; (2) she suffered an adverse employment action; and (3)
there is some causal relationship between the two events. Holifield v. Reno, 115 F.3d 1555, 1566
(11th Cir. 1997) (per curiam); see also Goldsmith v. City of Atmore, 996 F.2d 1155, 1162-63
(11th Cir. 1993). In the context of a retaliation claim, where proof of retaliatory intent is offered
by way of circumstantial evidence, courts apply a burden-shifting scheme akin to the McDonnell
Douglas framework. If the plaintiff makes out a prima facie case of retaliation, the burden shifts
to the employer to articulate a legitimate reason for the adverse employment action. Sullivan v.
Nat’l R.R. Passenger Corp., 170 F.3d 1056, 1059 (11th Cir. 1999). If the employer proffers a
legitimate reason, the burden shifts back to the employee to show that the legitimate reason was
pretext for prohibited retaliatory conduct. Id. The plaintiff can demonstrate pretext by exposing
“weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in the
defendant’s reasoning. Springer v. Convergys Customer Mgmt. Grp. Inc., 509 F.3d 1344, 1348
(11th Cir. 2007).
A review of the Rule 56 evidence makes clear that although Plaintiff has met the second
element here, she has utterly failed to establish the first and third elements.
Plaintiff’s 2011Complaint was Not Statutorily Protected Conduct
“Title VII’s protections against retaliation do not create an aegis or shield guarding
against any and all retaliatory wrongs.” Cooley v. Great S. Wood Preserving, Inc., 2004 WL
5570664, at *9 (M.D. Ala. 2004) aff’d sub nom. Cooley v. Great S. Wood Preserving, 138 F.
App’x 149 (11th Cir. 2005). Thus, to satisfy the first prong of the prima facie case, an employee
who claims retaliation for making a complaint of harassment must have had a good faith,
objectively reasonable belief that such harassment was unlawful under Title VII. Cooley, 2004
WL 5570664 at *9 (citing Little v. United Techs., Carrier Transicold Div., 103 F.3d 956, 960
(11th Cir. 1997)). Title VII prevents discrimination on the basis of race, color, religion, sex, or
national origin. 42 U.S.C. § 2000e-2.
The “harassment” about which Plaintiff made a complaint was not based on any
protected categories covered by Title VII. Rather, Plaintiff testified that the harassment was
because she was “[d]eemed as a troublemaker. Using my husband’s position to get what I want
is exactly what was stated to me.” (Doc. # 22-8 at 6). The only alleged harassment of which
Plaintiff has provided detailed is being called the “devil” for “keeping up mess.” (Doc. # 1 &
21). Plaintiff was also called “baby duck” for “following up behind momma duck,” referring to
a friend of Plaintiff’s.
(Doc. # 1 & 21).
Thus, the “harassment” about which Plaintiff
complained was not harassment that is made unlawful by Title VII. Claims related to retaliation
on the basis of complaints about unspecified interpersonal conflict are wholly unrelated to Title
VII. Even if the court were to assume that Defendant retaliated against Plaintiff on this basis,
this conduct would not be prohibited by Title VII. See Cooley, 2004 WL 5570664 at *9.
Because Plaintiff did not make a complaint that she was being harassed for any reason
made unlawful by Title VII, she cannot establish the first element of her prima facie case of Title
Plaintiff Has Failed to Establish a Causal Relation Between Her Complaint
and Her Demotion
Even if Plaintiff could establish the first element by showing that she engaged in
statutorily protected conduct (and to be clear, she has not made that showing), and even though
she has indeed established the second element (that is, her demotion does in fact constitute an
adverse employment action), her claim would still fail. The remaining question is whether she
can meet the third element. To do that, Plaintiff has to establish a causal connection between her
alleged protected expression and her demotion. She has also failed to make that showing.
A plaintiff establishes a causal connection by showing that the relevant decision-maker
was “aware of the protected conduct, and that the protected activity and the adverse actions were
not wholly unrelated.” Shannon v. Bellsouth Telecomm., Inc., 292 F.3d 712, 716 (11th Cir.
2002) (quoting Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 590 (11th Cir. 2000)). The plaintiff
bears the burden of persuasion “to proffer evidence sufficient to permit a reasonable fact finder
to conclude that the retaliatory animus was the ‘but-for’ cause” of the adverse action. Sims v.
MVM, Inc., 704 F.3d 1327, 1332 (11th Cir. 2013).
Plaintiff’s EEOC Charge indicated that she was retaliated against because her husband,
who retired in 2008, conducted an investigation prior to his retirement. (Doc. # 1-1).4 “To
To be clear, this is not a case where the protected conduct can be characterized as “participation.”
Plaintiff’s demotion clearly could not have been in retaliation for the filing of her EEOC charge because her
demotion predated the EEOC Charge. (Doc. # 1-1).
establish a causal connection, a plaintiff must show that ‘the decision-makers were aware of the
protected conduct’ and ‘that the protected activity and the adverse employment action were not
wholly unrelated.’” Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 583 (11th Cir. 2000) (internal
citation omitted), overruled on other grounds, Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53 (2006)). “Close temporal proximity between the protected activity and the adverse action
may be sufficient to show that the two were not wholly unrelated.” Bass v. Bd. of County
Comm’rs, 256 F.3d 1095, 1119 (11th Cir. 2001) (citation omitted). However, a lapse in time of
several months, in the absence of other evidence tending to show causation, is insufficient. See
Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004). Some four years passed between what
Plaintiff claims was protected activity and her demotion. “This lapse in time, standing alone, is
enough to extinguish Hall’s claims in light of the Supreme Court’s decision in Clark County Sch.
Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 1511 (2001).” In other words, such a
substantial time lapse between any protected conduct and the alleged adverse action is too great
to constitute circumstantial evidence of causation. See, e.g., Clark County Sch. Dist. v. Breeden,
532 U.S. 268, 273-74 (2001) (citing affirmatively several court of appeals decisions for the
proposition that a three to four month gap is insufficient to establish the causal relation prong in
a retaliation case); Wascura v. City of South Miami, 257 F.3d 1238, 1244-45 (11th Cir. 2001)
(holding three and one-half month period between plaintiff’s protected conduct and the adverse
employment action was insufficient to establish a causal connection).
In addition to the substantial time lapse here, it is also undisputed that Chief Roper
promoted Plaintiff in the interim in 2009. This fact operates as a break in the chain of causal
connection and removes any inference that her 2012 demotion was in any way in retaliation for
her husband’s 2008 investigation. (Doc. # 1-1).
Finally, as to the complaint Plaintiff made to Crawford in 2011, that she was being
harassed at work, not only is that complaint not a statutorily protected expression (as discussed
above), there is no evidence in the record that Chief Roper, the decision maker with regard to
Plaintiff’s demotion, was even aware of that complaint.
Therefore, even if Plaintiff had
established the first element of her prima facie case, Plaintiff has failed to establish the third
Defendant’s Legitimate Non-Retaliatory Reason for Plaintiff’s Demotion
To establish retaliation under Title VII, the plaintiff must meet the ultimate burden of
showing that the reasons given for an adverse action were a pretext for retaliation and that
retaliation was the but-for cause of the adverse action. Univ. of Texas Sw. Med. Ctr. v. Nassar,
133 S.Ct. 2517 (2013). Even if Plaintiff had established a prima facie case of retaliation (which
she has not), Defendant has articulated a legitimate, non-retaliatory reason for her demotion
which she has failed to establish was pretextual.
On December 7, 2012, Plaintiff was demoted by AC Roper from the position of Latent
Print Examiner back to Administrative Assistant. (Doc. # 21-1). The reason given for the
demotion was that Plaintiff had made fingerprint identification mistakes. (Doc. # 21-1). Plaintiff
had committed her fifth error in a twelve month period which demonstrated an inability to
operate or function as a LPE. (Doc. # 21-1). Plaintiff has not disputed that she made the errors
at issue. Instead, she argues that she had not been properly trained. However, the evidence in
the record shows that she committed these errors despite having held the position for three years
and after receiving remedial training. (Doc. # 21-1 at 4; Doc. # 22 at 4-5).
In evaluating pretext, the court asks “whether the plaintiff has cast sufficient doubt on the
defendant’s proffered non[retalia]tory reasons to permit a reasonable factfinder to conclude that
the employee’s proffered legitimate reasons were not what actually motivated its conduct.”
Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997) (citation and internal
quotation marks omitted).
As long as the proffered reason is one that might motivate a
reasonable employer, “an employee must meet that reason head on and rebut it, and the
employee cannot succeed by simply quarreling with the wisdom of that reason.” Chapman v. AI
Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc). This, Plaintiff has not even attempted
to do. (Doc. # 22 at 5-6). Therefore, for the additional reason that Defendant has articulated a
legitimate, non-retaliatory reason for Plaintiff’s demotion that Plaintiff has not established was
pretextual, Defendant is entitled to summary judgment on Plaintiff’s retaliation claim.
Plaintiff’s Retaliatory Hostile Environment Claim
In Count Nine of her Complaint, Plaintiff asserts a claim that she was subjected to a
retaliatory hostile environment.
“A prima facie case of retaliatory hostile work environment, like a prima facie case of
retaliation generally, requires the establishment of protected activity.” Wheatfall v. Bd. of
Regents of Univ. Sys. of Ga., 9 F.Supp.3d 1342, 1359 (N.D.Ga.2014) (citing Gowski v. Peake,
682 F.3d 1299, 1311 (11th Cir. 2012)). For the reasons discussed above, Plaintiff cannot
establish that she engaged in statutorily protected conduct under Title VII with regard to her
2011 complaint, and thus fails to establish the first element of her claim in relation to the
complaint made to Crawford.
The analysis of the second element of Plaintiff’s retaliatory environment claim is
different than her retaliatory demotion claim, however. Plaintiff argues that Defendant created a
hostile environment after she filed her EEOC Charge. (Doc. # 22 at 6). The Eleventh Circuit
“recognizes a cause of action for retaliatory hostile work environment.” Gowski v. Peake, 682
F.3d 1299, 1312 (11th Cir.2012). To rise to the level of an adverse employment action, the
retaliatory harassment Plaintiff suffered must be “sufficiently severe or pervasive to alter the
terms and conditions of employment.” Id. Here, Plaintiff argues that the environment was so
intolerable it culminated in her resignation. (Doc. # 22 at 6). However, nowhere does Plaintiff
set forth the facts that allegedly made the environment intolerable. (See, generally, Doc. # 22).
In fact, in this section of Plaintiff’s brief, she cites to nothing but the unsworn allegations of her
Complaint. (Doc. # 22 at 7).
As discussed above in addressing the standard of review, Rule 56 “does not allow the
plaintiff to simply rest on his allegations made in the complaint; instead, as the party bearing the
burden of proof of trial, he must come forward with at least some evidence to support each
element essential to his case at trial.” Anderson, 477 U.S. at 252. “Mere allegations” made by a
plaintiff are insufficient. Id. Because Plaintiff has presented nothing other than the “mere
allegations” of her Complaint, she has failed to meet her burden of showing, with affirmative
proof, that the alleged retaliatory acts were severe and pervasive enough to alter the terms of her
employment.5 Therefore, Defendant is entitled to summary judgment on this claim.
For the foregoing reasons, Defendant’s is entitled to summary judgment on the two
remaining claims in Plaintiff’s Complaint. A separate order will be entered.
See Federal Rule of Civil Procedure 56(c) (clarifying that parties must support their factual positions on
summary judgment by “citing to particular parts of materials in the record” and that the court “need consider only
the cited materials”); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir.1998) (federal courts “are wary of
becoming advocates who comb the record of previously available evidence and make a party’s case for it”); William
son v. Clarke County Dep’t of Human Resources, 834 F.Supp.2d 1310, 1314 n. 2 (S.D. Ala. 2011) (“The Court will
not scour uncited portions of the summary judgment record for evidence that might bolster either side’s
DONE and ORDERED this April 18, 2016.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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