Johnson v. City of Birmingham
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 12/15/2017. (KBB)
2017 Dec-15 PM 12:13
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CITY OF BIRMINGHAM,
Civil Action Number
Terrie Johnson alleges that a fellow Birmingham Police Department
(“BPD”) officer subjected her to a sexually hostile work environment. Doc. 1.
She filed this lawsuit, alleging that her former employer, the City of Birmingham,
knew or should have known of the abuse and failed to take prompt remedial action
and then retaliated against her for complaining of the alleged harassment. Doc. 1.
The City filed a motion for summary judgment, which is fully briefed and ripe for
consideration. Docs. 26; 27; 29. After reading the briefs, viewing the evidence,
and considering the relevant law, the court grants the motion.
LEGAL STANDARD FOR SUMMARY JUDGMENT
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is proper “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. “Rule 56 mandates the entry of summary judgment, after adequate
time for discovery and upon motion, 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. v.
Catrett, 477 U.S. 317, 322 (1986) (alteration in original). The moving party bears
the initial burden of proving the absence of a genuine issue of material fact. Id. at
323. The burden then shifts to the nonmoving party, who is required to “go
beyond the pleadings” to establish that there is a “genuine issue for trial.” Id. at
324 (internal quotations omitted). A dispute about a material fact 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).
At summary judgment, the court must construe the evidence and all
reasonable inferences arising from it in the light most favorable to the non-moving
party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); see also Anderson,
477 U.S. at 255. Any factual disputes will be resolved in the non-moving party’s
favor when sufficient competent evidence supports the non-moving party’s version
of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276, 1278 (11th
Cir. 2002). However, “mere conclusions and unsupported factual allegations are
legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432
F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mountain Park, Ltd. v.
Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere ‘scintilla’ of
evidence supporting the opposing party’s position will not suffice; there must be
enough of a showing that the jury could reasonably find for that party.” Walker v.
Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252)).
Between 1994 and 2015, Johnson worked as a police officer for the BPD’s
West Precinct, where she alleges a fellow officer sexually harassed her. Docs. 1 at
2; 27 at 3; 29 at 3. Specifically, she alleges that Officer Isaac Ephraim waited for
her by her car after work, repeatedly asked her out on dates, which she rebuffed,
and, in response, began a campaign of harassment against her. 1 Docs. 1 at 2; 27-1
Johnson’s first allegation of misconduct by Ephraim is that, “when sitting
next to [her] at roll call, Ephraim put his hand on her thigh,” and, after she
removed his hand, “he responded that he knew she liked it and put his hand on her
thigh again.” Doc. 1 at 2. Next, on September 5, 2014, while Johnson was
working at a computer at the station, Ephraim purportedly walked over and “swung
Johnson alleges also in her brief that one of her supervisors, Captain James Blanton,
propositioned her for sex and texted her a picture of his penis. Doc. 29 at 2. Johnson did not
include this allegation in the complaint she filed in this case, focusing instead solely on Ephraim.
See doc. 1. “A plaintiff may not amend her complaint through argument in a brief opposing
summary judgment.” Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir.
2004). To the extent Johnson intended to raise claims based on Captain Blanton’s conduct, she
should have included those allegations in her complaint. More importantly, when Johnson
complained about Captain Blanton, the BPD responded effectively by promptly transferring him
to a different precinct. Doc. 27-1 at 12.
his hand towards [her] and came close to hitting [her].” Docs. 27-1 at 6; 29 at 4.
Ephraim disputes this, alleging that, because Johnson had used the computer for
almost two hours, he said to her “girl, get off the computer and let someone else
on,” which made Johnson irate. Doc. 27-3 at 2. Either way, Johnson and Ephraim
began loudly arguing and using profanity, causing a disruption at the precinct.
Docs. 27 at 4; 27-1 at 6; 27-3 at 2; 29 at 4. Ephraim later admitted that during the
confrontation he told Johnson that she was “talking like a man” and that “shit
happens when you talk like a man.” Doc. 27-3 at 2. Johnson filed a complaint
with BPD’s Internal Affairs Department (“IAD”) against Ephraim a few days later,
in which she complained that Ephraim swung his fist towards her face as if he was
about to strike her. Docs. 27 at 4; 27-1 at 6; 27-3 at 2; 29 at 4.
On November 14, 2015, Johnson filed a second IAD complaint against
Ephraim, citing two separate incidents. Doc. 27 at 4-5. First, she alleged that
Ephraim drove past her one day and said “nice car,” which she interpreted as a
retaliatory act in response to her first IAD complaint. Doc. 27-1 at 6. Johnson also
complained that Ephraim had appeared at one of her assigned calls, even though
the dispatcher did not send him there, and began “blowing towards her thigh.”
Docs. 1 at 3; 27-1 at 6. When the BPD subsequently investigated Johnson’s
complaint, Ephraim claimed that he answered the call to provide back up for
Johnson because the dispatcher stated that the “subjects had guns and knives and
were fighting in the street.” Doc. 27-3 at 2. Ephraim added that he blew on
Johnson’s legs to scare off a bee that was hovering near her. Docs. 1 at 3; 27 at 45; 27-3 at 4.
As further examples of alleged harassment, Johnson alleges that, around this
same time, she overheard Ephraim referring to female officers as “bitches.” Doc.
27-1 at 5-6. On another occasion, Ephraim purportedly explained to Johnson that
the “come two times” phrase written on his vehicle’s tag referred to his ability to
pleasure women and that he could do the same for her. Doc. 27-1 at 14.
Johnson filed a third IAD complaint against Ephraim on March 9, 2015, 2 in
which she alleged that Ephraim forcefully and intentionally “bumped into her,”
knocking her off balance, and that he had done the same on two prior occasions.
Docs. 27 at 5; 29 at 4. She testified in her deposition in this case that this incident
angered her to the point that she telephoned the IAD agent in charge of
investigating her complaints, Sergeant David Rockett, to complain about Ephraim.
Doc. 27-1 at 11. However, Rockett “wasn’t aware that [the prior complaints] had
been assigned to [him],” and, as a result, “the file was inadvertently placed in a file
room on the shelf with closed cases.” Doc. 27-3 at 3. At some point after the third
Perhaps because of IAD’s delay in investigating her first two complaints, Johnson filed
a charge of discrimination with the Equal Employment Opportunity Commission on February
27, 2015, in which she alleges, in part, that she complained to IAD “on multiple occasions, but
the behavior continued, and it does not appear that [BPD] took any responsive action.” Doc. 271 at 38.
IAD complaint, the BPD began investigating Johnson’s complaints and transferred
Ephraim to another precinct. Doc. 27-1 at 16, 19.
On July 1, 2015, the BPD served Johnson with a Notice of Determination
Hearing, informing her that the BPD was considering disciplining her for the
argument that occurred on September 5, 2014.
Id. at 42-43.
Johnson’s request for a continuance, the BPD served Johnson with a second Notice
of Determination Hearing a month later, which included a new allegation that “on
an undisclosed date two or more years ago, [Johnson] commented to Officer
Ephraim about his penis and tried to reach into his pants.” Id. at 43. Johnson
requested another continuance. Id.
BPD finally held the hearing on September 1, 2015, during which Chief
A.C. Roper heard testimony from various officers. Id. at 40, 45. Johnson chose
not to attend the hearing and submitted a written statement instead, in which she
denied the allegations against her and asserted her belief that the BPD convened
the hearing to retaliate against her for complaining of Ephraim’s alleged
harassment. Id. at 42-43. After hearing the evidence, Chief Roper gave Johnson
and Ephraim a “letter of reprimand” and required that they attend remedial training
on the Workplace Harassment Policy, as both admitted to using profanity and
causing a disruption at work. Id. at 45; doc. 27-3 at 3. Chief Roper also suspended
Johnson for three days because of the allegation that she commented on and tried
to grab Ephraim’s penis. Docs. 27-1 at 45; 27-3 at 3. Chief Roper based this
decision on the statements of two witnesses who each corroborated Ephraim’s
account: Officer Erika Lofton, Ephraim’s partner, and Sergeant Pier Walker. Doc.
27-3 at 2-4.
Johnson appealed Chief Roper’s decision to the City’s Human Resources
Department. Doc. 27-1 at 39.
Shortly after filing her appeal, however, Johnson
retired from the BPD and accepted another job. Docs. 27 at 3; 29 at 1. As a result,
Johnson never actually served the suspension. Docs. 27 at 6; 27-1 at 67.
Despite Johnson’s retirement, the City’s Director of Human Resources,
Peggy Washington-Polk, heard the appeal and ultimately recommended that the
mayor uphold the suspension. Doc. 27-3 at 1-4. Director Washington-Polk, like
Chief Roper, was persuaded by the testimony of Officer Lofton and Sergeant
Walker. Id. at 3. At the appeal hearing, Officer Lofton testified that she saw
Johnson “reaching for Ephraim’s zipper” and saying “come on let’s go” and that
she failed to report the incident because she “didn’t want to get involved” and
“didn’t want to get [Johnson] in trouble.” Id. at 2. Sergeant Walker similarly
testified that she heard Johnson say to Ephraim “I heard what you working with”
and then reach for his pants. Id. at 2-3. Sergeant Walker claims she told Johnson
and Ephraim to “get out of here with that,” but did not discipline them because
“[n]either of them complained, so [she] thought [she] had done enough by stopping
them and telling them to leave.” Id. at 3. After the appeal, BPD suspended
Sergeant Walker without pay for failing to report the incident. Id. at 3-4.
In her recommendation to the mayor, Director Washington-Polk wrote that
she found Sergeant Walker credible because she “would [not] have agreed to take
punishment [i.e. the suspension] for something that didn’t happen.” Id. at 3. In
contrast, Director Washington-Polk challenged Ephraim’s credibility, noting that
“[i]t is irrational at best to assume that it was necessary for Officer Ephraim to swat
at a yellow jacket and bend his face close enough to the bee to blow it away from
Officer Johnson’s pants without risk of harm to himself. Swatting at the bee
should have been sufficient.” Id. Finally, Director Washington-Polk based her
recommendation to sustain Johnson’s suspension, in part, on the fact that Johnson
was “gainfully employed with [another] Police Department,” reasoning that the
suspension “ha[d] not affected her ability to seek employment.” Id. at 3-4. The
Mayor accepted the recommendation and upheld the suspension. Id. at 4. Johnson
filed this lawsuit, alleging claims for a hostile work environment and for
retaliation. Doc. 1.
Title VII of the Civil Rights Act of 1964 makes it unlawful “to discriminate
against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-2. To establish a prima facie claim of sexual
harassment under Title VII, an employee must prove that (1) she belongs to a
protected group; (2) she has been subjected to unwelcome sexual harassment; (3)
the harassment was based on her sex; (4) the harassment was sufficiently severe or
pervasive to alter the terms and conditions of employment and create a
discriminatorily abusive working environment; and (5) a basis for holding the
employer liable exists. Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d
1227, 1231 (11th Cir. 2006).
Title VII also has a retaliation provision, creating a cause of action for
employees who are discriminated against for “opposing any practice” that they
have a good faith belief to be unlawful. 42 U.S.C. § 2000e-3; Meeks v. Computer
Assocs. Int’l, 15 F.3d 1013, 1021 (11th Cir. 1994). To establish a prima facie case
of retaliation, the plaintiff must show (1) that she engaged in statutorily protected
expression; (2) that she suffered an adverse employment action; and (3) that the
adverse employment action would not occurred but for the protected
activity. Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013).
Once the plaintiff establishes a prima facie case, “the employer must proffer a
legitimate, non-discriminatory reason for the adverse employment action,” and if
the employer does so, “the plaintiff must then demonstrate that the employer’s
proffered explanations are a pretext for retaliation.” Meeks, 15 F.3d at 1021.
A. Johnson’s Hostile Work Environment Claim
The City does not dispute that Johnson was subjected to unwelcome
harassment based on her sex. Rather, the City argues that Johnson’s allegations
“fall far short of demonstrating the requisite severity or pervasiveness required,”
and that, alternatively, it is not liable because it responded effectively by
transferring Ephraim to another precinct. Doc. 16 at 13-16.
1. Whether the alleged harassment was severe or pervasive
The “severe or pervasive” element is the one that “tests the mettle of most
sexual harassment claims.” Gupta v. Florida Bd. of Regents, 212 F.3d 571, 583
(11th Cir. 2000). The Supreme Court created the test to “ensure that courts and
juries do not mistake ordinary socializing in the workplace—such as male-on-male
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81
The harassment must be both objectively severe or pervasive to a
reasonable person and subjectively severe or pervasive to the plaintiff. Harris v.
Forklift Sys., Inc., 510 U.S. 17, 23 (1993). While there is “no mathematically
precise test,” the objective component of this analysis generally requires courts to
consider several factors: (1) the frequency of the discriminatory conduct; (2) its
severity; (3) whether it is physically threatening or humiliating, or a mere offensive
utterance; and (4) whether it unreasonably interferes with an employee’s work
performance. Id. Though all of these factors should be taken into account, “no
single factor is required.” Id.
The “severe or pervasive” test is particularly rigorous in this circuit. For
example, where a female employee’s male supervisor harassed her over a period of
sixteen months—including rubbing his hip against hers while touching her
shoulder and smiling, making a “sniffing sound” while looking at her groin area on
multiple occasions, and “constant[ly] following” her while staring at her—the
court held that the conduct fell “well short” of altering the terms and conditions of
her employment. Mendoza v. Borden, Inc., 195 F.3d 1238, 1247 (11th Cir. 1999).
Based on the record here, Johnson cannot establish that Ephraim subjected
her to objectively severe or pervasive harassment. See id. Johnson alleges that,
among other things, Ephraim (1) once put his hand on her thigh without her
consent and, after she removed his hand, he responded that he knew she liked it
and put his hand on her thigh again; (2) swung at her as if to punch her and told her
“shit happens when you talk like a man”; (3) told her when he drove past that she
had a “nice car”; (4) showed up at one of her calls and blew on her thigh; (5)
referred to female coworkers as “bitches” on one occasion; (6) told her on one
occasion that he could make her sexually “come two times”; and (7) intentionally
and forcefully bumped into her and knocked her off balance on at least three
occasions. See Part II, supra. Some of these allegations—i.e. saying “nice car”
and threatening to fight Johnson—are not sexual in nature or gender-related and
should not factor into the court’s analysis.
See Gupta, 212 F.3d at 583
(“[S]tatements and conduct must be of a sexual or gender-related nature—sexual
advances, requests for sexual favors, or conduct of a sexual nature—before they
are considered in determining whether the severe or pervasive requirement is met.
Innocuous statements or conduct, or boorish ones that do not relate to the sex of
the actor or of the offended party (the plaintiff), are not counted.”). Still even
considering all the allegations, at best, Johnson has presented “offhand comments,
and isolated incidents,” not “extremely serious” harassment. See Faragher v. City
of Boca Raton, 524 U.S. 775, 788 (1998).
While inappropriate and certainly not the sort of behavior that employers
should tolerate in a work place, these nine incidents over a two-year period are not
severe or pervasive enough to rise to the level of a hostile work environment under
the law. See Harris, 510 U.S. at 23. Critically, Johnson failed to direct the court to
any evidence in the record where Johnson alleges that these incidents rose to the
level of “unreasonabl[e] interfere[nce]” with her work performance. See Mendoza,
195 F.3d at 1248. Therefore, her hostile environment claim fails.
2. Whether the City knew of the harassment
Alternatively, the claim fails because Johnson failed to utilize the City’s
According to Johnson, she reported Ephraim’s alleged
harassment on three different occasions to IAD. The problem with this contention,
however, is that IAD is not one of the entities designated by the City to receive
sexual harassment complaints. See doc. 27-1 at 48-53. Under the City’s Gender
Harassment Policy, 3 employees are directed to first “[r]eport incidents of sexual
harassment to your supervisor, your supervisor’s superior, or the City’s Personnel
Department,” or to utilize the “grievance and complaint procedures of the Rules
and Regulations of the Jefferson County Personnel Board.” Doc. 27-1 at 50-51.
An employer cannot be charged with constructive knowledge where it
“developed and promulgated an effective and comprehensive sexual harassment
policy, aggressively and thoroughly disseminated the information and procedures
contained in the policy to its staff, and demonstrated a commitment to adhering to
this policy.” Farley v. Am. Cast Iron Pipe Co., 115 F.3d 1548, 1554 (11th Cir.
1997); see also Watson v. Blue Circle, Inc., 324 F.3d 1252, 1260 (11th Cir. 2003).
Rather, “[t]he sole inquiry when the employer has a clear and published policy is
whether the complaining employee followed the procedures established in the
Johnson signed an acknowledgement form confirming that she received the policy.
Doc. 27-1 at 46.
company’s policy.” Breda v. Wolf Camera & Video, 222 F.3d 886, 890 (11th Cir.
2000). As the Eleventh Circuit has held:
In applying the Faragher [v. City of Boca Raton, 524 U.S. 775
(1998)] affirmative defense, we have noted that the employer’s notice
of the harassment is of paramount importance [because] if the
employer had notice of the harassment . . . then it is liable unless it
took prompt corrective action. . . . This inquiry is facilitated by the
identification of the appropriate Company representative to whom
employees should register their complaints in the [employer’s] sexual
harassment policy. . . . [W]hen an employer’s sexual harassment
policy clearly specifies the steps an employee should take to alert the
employer of sexual harassment, the employer has, by the policy, itself
answered the question of when it would be deemed to have notice of
the harassment sufficient to obligate it or its agents to take prompt and
appropriate remedial measures. . . . [O]nce an employer has
promulgated an effective anti-harassment policy and disseminated that
policy and associated procedures to its employees, then it is
incumbent upon the employees to utilize the procedural mechanisms
established by the company specifically to address problems and
grievances. . . . Therefore, we conclude that [the employer] cannot be
considered to have been placed on notice of [the] harassing behavior
by the plaintiffs’ informal complaints to individuals not designated by
[the employer] to receive or process sexual harassment complaints.
Madray v. Publix Supermarkets, Inc., 208 F.3d 1290, 1300 (11th Cir. 2000).
Based on this precedent, Johnson’s failure to utilize the complaint
mechanism outlined in the City’s policy precludes this court from finding that the
City failed to timely respond to her complaints.
On this record, Johnson
unreasonably failed to take advantage of the City’s complaint procedure, and no
basis exists to find that the City had notice of the alleged harassment. See id. at
1300; Farley, 115 F.3d at 1554.
Moreover, even considering the IAD complaints, the City cannot be held
liable because Johnson’s first two complaints were too vague to put the City on
notice of serious harassment, and the City took prompt remedial action by
transferring Ephraim once it became aware of the severity of the allegations. As
Johnson describes it, her first two complaints include the following allegations: (1)
Ephraim “swung his hand towards [Johnson] and came close to hitting [her]” and
told Johnson that she was “talking like a man” and that “shit happens when you
talk like a man”; (2) Ephraim drove past her one day and said “nice car”; and (3)
Ephraim appeared at one of her calls and began “blowing towards her thigh.”
Docs. 1 at 3; 27-1 at 6; 29 at 4; 27-3 at 2. These allegations are insufficient to put
the City on notice of a hostile work environment. See Coates v. Sundor Brands,
Inc., 164 F.3d 1361, 1364 (11th Cir. 1999) (a complaint defining the problem as a
“personal” matter and failing to mention the alleged harassment insufficient to
place employer on notice); Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269,
1278 (11th Cir. 2002) (an employee’s “generalized comment” to a manager that
one of his coworker’s “needs to watch what he says to me” did “not constitute
actual notice” to employer); Nurse “BE” v. Columbia Palms W. Hosp. Ltd. P’ship,
490 F.3d 1302, 1310 (11th Cir. 2007) (complaint of “a persistent but nonthreatening suitor” was insufficient to put employer on notice of harassment).
Furthermore, once the IAD had actual notice of the existence of a serious
problem through Johnson’s third complaint, in which she alleged Ephraim bumped
into her forcefully, the BPD immediately investigated and transferred Ephraim to
another precinct. Docs. 27 at 5; 27-1 at 11, 16, 19; 29 at 4. Accordingly, based on
the record, the City promptly took remedial action, and is therefore not liable for
the alleged harassment. See Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1258
(11th Cir. 2014); Madray, 208 F.3d at 1302; Coates, 164 F.3d at 1366 (“[The
employer’s] action in response to [the plaintiff’s] complaint was anything but
prompt and effective.”).
To summarize, summary judgment is due because the allegations fail to rise
to the necessary severe or pervasive level. Alternatively, Johnson failed to utilize
the City’s anti-harassment complaint mechanism, and the City promptly responded
once it received a complaint that placed it on notice of the severity of the conduct.
B. Johnson’s Retaliation Claim
The City next contends that Johnson cannot prove a retaliation claim,
offering two primary arguments in support: (1) that Johnson did not suffer an
adverse employment action because she voluntarily retired before serving her
suspension; and (2) that Johnson cannot show a causal link between her suspension
and her protected activity. Doc. 27 at 3. While the City is correct that Johnson
never served her suspension, an “adverse employment action” is any action that, if
taken, “might dissuade a reasonable worker from making or supporting a charge
of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006). Relevant here, because the suspension remains in Johnson’s file and
would negatively impact her if she sought re-employment with the City, doc. 27-3
at 3-4, a reasonable worker might well have been “dissuaded” from filing the
See Burlington, 548 U.S. at 68.
Therefore, the court finds that the
suspension qualifies as an adverse employment action.
Johnson’s retaliation claim fails, however, because she cannot show that her
IAD complaints and her EEOC charge were the but-for cause for her suspension.
See Nassar, 133 S. Ct. at 2533. In general, a plaintiff can prove causation “by
showing close temporal proximity between the statutorily protected activity and
the adverse employment action.” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361,
1364 (11th Cir. 2007) (internal quotations omitted).
From a close temporal
proximity perspective, the best case scenario for Johnson is February, 2015 when
Johnson filed her EEOC complaint or March, 2015 when she filed her third IAD
complaint. Setting aside whether the IAD complaint is protected activity, given
that, as Johnson described it, it did not mention any alleged discrimination or
harassment,4 at best, between three to four months had passed between her
See Thaxton-Brooks v. Baker, 647 F. App’x 996, 1000 (11th Cir. 2016) (vague
comments “about ethical violations and questionable hiring practices . . . do not constitute
protected activities because they do not relate to racial discrimination or retaliation”).
protected activity and when BPD issued the initial Notice of Determination
Hearing in July, 2015, and five to six months had passed between her protected
activity and the suspension. Doc. 27-1 at 42. A gap of three to six months,
standing alone, is too long to establish causation. See Thomas, 506 F.3d at 1364
(holding that a three month delay, standing alone, was insufficient to create a
reasonable inference of causation).
Therefore, Johnson must point to “other
evidence tending to show causation” to prevail. Id.
After closely examining the record, there is no other evidence tending to
show any causal link between Johnson’s protected activity and the suspension. A
plaintiff can prove causation through “sufficient evidence that the decision-maker
became aware of the protected conduct, and that there was a close temporal
proximity between this awareness and the adverse action.”
Shotz v. City of
Plantation, Fla., 344 F.3d 1161, 1180 (11th Cir. 2003). As the City correctly
notes, Johnson has not pointed to any evidence “that the investigators who
investigated her allegations were even aware that she filed an EEOC charge.”
Docs. 27 at 22; 29 at 5-6. While Chief Roper presumably knew about Johnson’s
IAD complaints, he disciplined both Johnson and Ephraim for their shouting match
on September 5, 2014. Docs. 27-1 at 45; 27-3 at 3. As for his separate decision to
suspend Johnson, that was based on corroborated reports that Johnson purportedly
tried to touch Ephraim’s penis, and Johnson has not presented any evidence to
show that retaliatory animus factored into the decision. Based on this record,
Johnson has failed to establish that the City would not have suspended her but for
her IAD complaints and EEOC charge. See Nassar, 133 S. Ct. at 253; Thomas,
506 F.3d at 1364.
Finally, the retaliation claim also fails because Johnson failed to rebut the
City’s articulated reason for her suspension, namely the alleged incident where she
attempted to grab Ephraim’s penis. Doc. 27-1 at 43. Johnson claims—without
evidence—that Officer Lofton and Sergeant Walker fabricated the charge because
of their friendship with Ephraim. Doc. 29 at 3. But there was no evidence before
Chief Roper to question the veracity of these witnesses.
As for Director
Washington-Polk, who handled Johnson’s appeal, she added that she found
Sergeant Walker credible, in part, because Walker’s report resulted in Walker
being suspended for failing to take action when she witnessed Johnson’s conduct.
Doc. 27-3 at 3. Ultimately, Johnson’s contention that these two witnesses made up
the allegation because they are “friends” of Ephraim, doc. 29 at 3, is speculative at
best and does not establish that Chief Roper and Director Washington-Polk acted
unreasonably when they opted to believe these witnesses. As the circuit aptly put
it in another case in which the accused also challenged the veracity of the
allegations against him:
We can assume for purposes of this opinion that the complaining
employees . . . were lying through their teeth. The inquiry of the
ADEA is limited to whether [the employer] believed that Elrod was
guilty of harassment, and if so, whether this belief was the reason
Elrod has offered no evidence to show that Sears’ justification is
unworthy of credence.
Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991). Because
Chief Roper and Director Washington-Polk had a reasonable basis to believe these
witnesses, and Johnson has provided no evidence that the City’s proffered reason
for Johnson’s suspension is pretextual, her retaliation claim is due to be denied.
See Nassar, 133 S. Ct. at 253 (insufficient to show that the protected activity was a
motivating factor for the adverse employment action to prove a retaliation claim);
Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000) (plaintiffs
have the burden to prove pretext).
Consistent with this opinion, the City’s Motion for Summary Judgment, doc.
26, is due to be granted. A separate order will be entered.
DONE the 15th day of December, 2017.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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