Lawrence v. Board of Trustees of Lawson State Community College, The et al

Filing 30

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 3/6/2018. (KBB)

FILED
2018 Mar-06 PM 02:10
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CRAIG D. LAWRENCE, SR.,
Plaintiff,

vs.
LAWSON STATE COMMUNITY
COLLEGE, ET AL,
Defendants.

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Civil Action Number
2:16-cv-01885-AKK

MEMORANDUM OPINION
Dr. Craig Lawrence, Ph.D., alleges that his employer, Lawson State
Community College, and his supervisors, Dr. Perry Ward, Ph.D., and Sharon
Crews, in violation of Section 1981 of the Civil Rights Act of 1866 as amended, 42
U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, and
the Age Discrimination in Employment Act, 29 U.S.C. § 623, failed to promote
him, subjected him to a hostile work environment because of his race, age, and/or
gender, and retaliated against him when he complained. Doc. 15. The Defendants
have filed a motion for summary judgment, doc. 20, which is fully briefed and ripe
for consideration, docs. 21; 26; & 28.

After reading the briefs, viewing the

evidence, and considering the relevant law, the court finds that the motion is due to
be granted.

I.

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

2

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)).
II.

FACTUAL BACKGROUND
Dr. Lawrence is a 61 year old Caucasian male currently employed as the

Director of Financial Services and Risk Assessment at Lawson State. Doc. 26 at 9.
Dr. Lawrence started his career as a professor at Bessemer State Technical
College, where he ultimately became the Chief Financial Officer. Docs. 21 at 7;
26 at 9-10. He joined Lawson State when it merged with Bessemer Tech in 2005
and hoped to oversee general accounting, auditing, and auxiliaries as the Director
of Financial Services. Docs. 21 at 6-7; 22-1 at 26-27; 22-3 at 13; 22-5 at 8; 26 at
9-11.

Instead, Lawson State made Dr. Lawrence the “Director of Financial

Services – Auxiliaries,” charging him with operation of the bookstores, cafeterias,
copy centers, and post offices. Docs. 21 at 7-8; 26 at 10-12.

3

Lawson State named a younger African American woman as Director of
Accounting, a position that oversaw the college’s accounting functions. Docs. 21
at 8; 26 at 12. This woman had served as Internal Auditor at Lawson State prior to
the merger. Doc. 22-5 at 24-26. When she resigned in 2010, Lawson State hired
another African American woman as her replacement. Docs. 21 at 9; 26 at 12.
Dr. Lawrence believes that the President and Vice President of Lawson
State, Dr. Perry Ward and Sharon Crews, who are both African American,
relegated him to auxiliaries oversight to “ostracize” him from the college’s main
business affairs. Doc. 26 at 11. For their part, Dr. Ward and Crews testified that
Vice Chancellor Debbie Dahl instructed them not to involve Dr. Lawrence in the
business office affairs or financial operations of the merged institution. Docs. 22-3
at 13; 22-5 at 8.

Crews claims that Dahl had cited Dr. Lawrence’s “non-

responsiveness” as the reason for her directive, doc. 22-5 at 8, while Dr. Ward cites
problems with the audits at Bessemer Tech, doc. 22-3 at 13.

However, Dr.

Lawrence’s relevant evaluations note that he led Bessemer Tech to three straight
successful audits. Doc. 22-6 at 27.
In 2014 Dr. Lawrence applied for the posted position of Dean of Career and
Technical Education. 1 Docs. 21 a 9; 26 at 18. Instead of reviewing any of the

1

The briefing suggests that Dr. Lawrence did not apply for this position or that Lawson
State failed to post it. See doc. 26 at 19. However, Dr. Lawrence’s deposition testimony and the
4

roughly thirty applications, Dr. Ward closed the search and requested authorization
to reorganize existing positions to cover the duties of the vacant position. Docs. 21
at 9; 26 at 19. As justification for his decision, Dr. Ward claims that the posting
created a disruption:
It got to be a problem for me because a number of our personnel on
campus started what I call posturing for the position saying—from
what I heard, they were going to get the position, they needed the
position, they weren’t going to work for this particular person if they
got it. It started to be extremely disruptive to the campus community.
Doc. 22-3 at 5. As a result of the reorganization, Dr. Ward changed the title and
respective duties of two employees: Donald Sledge (a sixty four year old African
American man)—from Assistant Dean of Career and Technical Education, to
Associate Dean of Career and Technical Education; and Nancy Wilson (a fifty year
old Caucasian woman)—from Chairperson for Manufacturing and Engineering, to
Assistant Dean of Career and Technical Education. Docs. 21 at 10; 26 at 19-20.
Dr. Lawrence believes that racial animus motivated Dr. Ward’s decision to
close the search and to reorganize the duties instead. Doc. 26 at 31-32. Dr.
Lawrence also alleges that in 2015 Dr. Ward excluded him for racial reasons from
the group of eighteen “backups” Dr. Ward selected for higher level employees (at
least sixteen of whom were African Americans). Docs. 15 at 13; 26 at 13, 34.

recommendation letters he provided in support of his application prove otherwise. See docs. 221 at 10; 22-2 at 80; 22-4 at 11-13.
5

As for Crews, Dr. Lawrence maintains that she “undermined” his authority
daily by ignoring the chain of command in the bookstore.

Doc. 26 at 16.

Allegedly, when one of Dr. Lawrence’s subordinates repeatedly directed her
questions and work-related issues to Crews instead of to Dr. Lawrence, Crews
reprimanded him instead of the employee. 2 Doc. 26 at 17. Also, Crews apparently
excluded Dr. Lawrence from meetings and decisions about the bookstore,
including whether to outsource the operations. Docs. 15 at 14-15; 22-5 at 44.
Crews also purportedly assigned Dr. Lawrence “demeaning” duties, such as
maintaining the student information kiosks and answering the suggestion boxes.
Doc. 15-1 at 5; 21 at 11-12. Finally, in an email to Dr. Lawrence regarding his
absence from the bookstore on one occasion, Crews warned Dr. Lawrence that she
could review the surveillance camera to verify his response. Docs. 15 at 15; 22-1
at 39; 22-5 at 37; 22-6 at 123. Dr. Lawrence contends that race, gender, and/or age
based animus motivated Crews’ actions, noting in support that Crews’ “cabinet” is
“made up exclusively of African Americans,” that Crews has hired mostly African
American women for the business office, and that Crews made a “negative racial

2

The employee apparently left her work station twice without permission, which resulted
in the employee and Dr. Lawrence arguing in person and by email. Dr. Lawrence forwarded the
email chain to Crews, who responded “I don’t have any advice on your handling this situation.
You are truly wrong. She is probably too emotional to speak with you with a professional tone.
You should have spoken with her before you began the email chain. I need to be in the meeting
when you and [she] talk. Please leave the situation alone.” Doc. 22-6 at 125-28.
6

comment” in a meeting that another white male employee “was not going to push
this black girl around.” Doc. 26 at 18, 34.
In addition to these alleged instances of discrimination, Dr. Lawrence
contends that Dr. Ward and Crews retaliated against him for filing a charge with
the Equal Opportunity Employment Commission by engaging in “further
harassment and discrimination.” Doc. 15-2. Allegedly, Crews (1) removed him
from an email chain about a grant project, (2) directed him to conduct an internal
audit without first informing the affected employees to expect a call from Dr.
Lawrence, and (3) gave him “the lowest evaluation score [he has] received in [his]
career.” Doc. 15-2 at 7.
III.

ANALYSIS

Based on this alleged conduct, Dr. Lawrence filed this lawsuit. Doc. 1. In
his Second Amended Complaint, Dr. Lawrence lists ten counts against Lawson
State, Crews, and Dr. Ward. Counts One through Four allege Section 1981 claims
“via Section 1983” against all three defendants, including official and individual
capacity claims against Dr. Ward and Crews, for failure to promote (Count One),
retaliation (Count Two), racially hostile work environment (Count Three), and
retaliatory hostile work environment (Count Four). Doc. 15 at 19-26. Counts Five
through Eight allege Title VII claims against the college for retaliation, racially
hostile work environment, sexually hostile work environment, and retaliatory

7

hostile work environment, respectively. Doc. 15 at 27-33. Finally, Counts Nine
and Ten allege claims under the ADEA against the college for discrimination and
retaliation, respectively. Doc. 15 at 33-36. The Defendants have moved for
summary judgment on all counts.
Many of Dr. Lawrence’s claims are not cognizable. For example, Lawson
State is an “arm of the state” of Alabama for purposes of Eleventh Amendment
immunity. 3 See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,
280–81 (1977). As such, it is immune from Section 1981 and ADEA liability, and
summary judgment is due against it as to Counts One through Four, and Nine and
Ten. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989) (“Section
1983 . . . does not provide a federal forum for litigants who seek a remedy against
a State for alleged deprivations of civil liberties . . . unless the State has waived its
[Eleventh Amendment] immunity.”); Kimel v. Florida Bd. of Regents, 528 U.S. 62,
83 (2000) (holding that Congress lacks the authority to abrogate state sovereign
immunity for age discrimination claims). Moreover, as state officials, Dr. Ward
and Crews are immune from suits for damages in their official capacity. See
Kentucky v. Graham, 473 U.S. 159, 166 (1985). Therefore, to the extent Dr.
Lawrence seeks money damages against them in their official capacity, summary

3

Lawson State is operated under the authority of the Alabama Department of
Postsecondary Education and the Alabama State Board of Education. Doc. 21 at 6.
8

judgment is due with respect to Counts One through Four. See Ex parte Young,
209 U.S. 123, 157-162 (1908).
As a result, the only surviving claims Dr. Lawrence has are the individual
capacity claims against Dr. Ward and Crews for alleged violations of Section 1981
(Counts One through Four) and the Title VII claims against the college (Counts
Five through Eight). In a nutshell, these counts allege claims for failure to promote
(Count One), hostile work environment (Counts Three, Four, Six, and Seven), and
retaliation (Counts Two, Five, and Eight). The court addresses these claims below,
beginning with the failure to promote claim in Section A, the hostile work
environment claims in Section B, and finally the retaliation claims in Section C.
A. Failure to Promote Claim
In Count One, Dr. Lawrence asserts a claim under Section 1981 against Dr.
Ward and Crews for failing to promote him to Dean of Career and Technical
Education.

Doc. 15 at 19-20.

Section 1981 “prohibits intentional race

discrimination in the making and enforcement of public and private contracts,
including employment contracts.” Ferrill v. Parker Grp., Inc., 168 F.3d 468, 472
(11th Cir. 1999); 42 U.S.C. § 1981. Where, as here, a plaintiff does not have direct
evidence of discrimination, 4 he can prove his claims by showing a prima facie case

4

To be clear, Dr. Lawrence does allege that he has direct evidence of discrimination—i.e.
the alleged statement by Crews that “I’m not going to let Sam push this black girl around.” See
9

of discrimination under the burden-shifting framework created in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Dep’t. of Community
Affairs v. Burdine, 450 U.S. 248 (1981). See Standard v. A.B.E.L. Servs., Inc., 161
F.3d 1318, 1330-31 (11th Cir. 1998).
This circumstantial method requires proof that the plaintiff was a “qualified
member of a protected class and was subjected to an adverse employment action in
contrast to similarly situated employees outside the protected class.” Alvarez v.
Royal Atl. Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010). “[T]o prevent
courts from second-guessing employers’ reasonable decisions and confusing
apples with oranges,” Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999),
the comparators must be “similarly situated in all relevant respects,” Holifield v.
Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). This generally entails ascertaining
“whether the employees are involved in or accused of the same or similar conduct
and are disciplined in different ways.” Maniccia, 171 F.3d at 1368.
In some circumstances, however, the “plaintiff’s failure to produce a
comparator does not necessarily doom her case,” as long as she can present a
“triable issue of fact” through “a convincing mosaic of circumstantial evidence that

doc. 26 at 34. Direct evidence is “evidence that, if believed, proves the existence of a fact
without inference or presumption” and includes “only the most blatant remarks, whose intent
could mean nothing other than to discriminate on the basis of some impermissible factor.”
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004) (internal quotations
omitted). Crews’ statement is not such a “blatant” remark that it can prove discrimination
without the need for an inference or presumption. See id.
10

would allow a jury to infer intentional discrimination.” Smith v. Lockheed-Martin
Corp., 644 F.3d 1321, 1328 (11th Cir. 2011).
Dr. Ward and Crews raise two arguments in support of their motion. First,
they contend that the failure to promote claim is time barred. 5 Doc. 21 at 16-17.
Although Dr. Ward and Crews are correct that the promotion decision at issue
occurred outside the two-year window, see doc. 21 at 16-18, the college waited
until three weeks later to announce its decision. See doc. 27-2 at 1. As a result,
unlike the actual decision itself, the announcement occurred within the statute of
limitations. Consequently, because of the longstanding principle that a limitations
period is equitably tolled “until the facts which would support a cause of action are
apparent or should be apparent to a person with a reasonably prudent regard for his
rights,” Reeb v. Econ. Opportunity Atlanta, Inc., 516 F.2d 924, 931 (5th Cir. 1975),
Dr. Lawrence’s Section 1981 claim is not time barred.
Next, Dr. Ward and Crews contend that Dr. Lawrence cannot establish a
prima facie case because he cannot show that Dr. Ward treated him less favorably
than similarly situated employees.

Doc. 21 at 17-21.

At issue here is Dr.

Lawrence’s contention that Dr. Ward failed to select him for the Dean of Career
and Technical Education position because of his race, and that Dr. Ward’s decision
to close the search and reorganize existing positions was a pretext for race
5

The relevant statute of limitations period here is two years. See Baker v. Birmingham
Bd. of Educ., 531 F.3d 1336, 1337–39 (11th Cir. 2008).
11

discrimination. Doc. 26 at 31. Dr. Lawrence concedes that he cannot point to any
comparators Dr. Ward purportedly treated more favorably. 6 Dr. Lawrence argues
instead that he has presented a “circumstantial mosaic of discrimination” to allow
his claim to proceed, i.e. (1) Crews’ hiring of mostly African American employees
(including her “cabinet”); (2) Crews’ comment during a meeting that “I’m not
going to let Sam push this black girl around;” and (3) that Crews and/or the college
purportedly provided tuition reimbursement only to African American employees.
Doc. 26 at 31-35. There are several flaws with Dr. Lawrence’s contentions—
mainly that Dr. Lawrence concedes that he did not apply for the tuition assistance
program, see doc. 22-1 at 44, and there is no evidence in the record to show that
Crews played any role in the decision to cancel the search for the position at issue.
In fact, Dr. Lawrence admits that Dr. Ward, rather than Crews, made this decision.
Doc. 26 at 14, 19.

Therefore, the contentions regarding the “mosaic of

discrimination,” which consist of actions taken by Crews, are unavailing.
Consequently, in light of Dr. Lawrence’s failure to paint Dr. Ward with any
discriminatory animus, and in the absence of any evidence that the cancellation of
the search resulted in Dr. Lawrence being treated less favorably than similarly

6

This decision is not surprising, given that the decision to close the search impacted all
the thirty applicants—of whom sixteen were black, eleven were white, and three were other
minorities. Doc. 29-2 at 2-3.
12

situated employees, see supra at n.7, summary judgment is due to be granted on
Count One.7
B. Hostile Work Environment Claims
In Counts Three, Four, Six, and Seven, Dr. Lawrence alleges that the
defendants subjected him to a hostile work environment because of his race and/or
gender in violation of Section 1981 and Title VII by: (1) excluding him from
accounting functions at the business office; (2) Crews’ refusal to consider his input
on whether to outsource operations of the bookstores; (3) Crews’ undermining of
his authority; (4) Crews’ decision to reprimand him for brief absences; (5) Crews’
“negative racial comment;” and (6) Crews’ decision to give him a lower
proficiency score. Doc. 26 at 36. None of these contentions, individually or
collectively, rises to the level necessary for a hostile work environment claim.
7

The claim fails also because Dr. Ward articulated a legitimate, nondiscriminatory reason
for the decision—i.e. to address the disruption caused by multiple employees jockeying for the
position and to reorganize the duties to face the actual reality in place. Doc. 22-3 at 5. Dr.
Lawrence contends that this reason is pretextual because Dr. Ward offered inconsistent reasons
for hiring Sledge. Doc. 26 at 31-32. Dr. Ward’s affidavit cites Sledge’s “leadership and many
years of experience as instructors and administrators in the Career Technical Education division
at Lawson State,” doc. 22-7 at 23; while Dr. Ward’s announcement of the decision cites the
intention to “align the [Sledge’s] job title with [his] duties and responsibilities,” 27-2 at 1. The
court agrees with the Defendants, however, that these statements are entirely consistent. See doc.
28 at 5. Therefore, even assuming Dr. Lawrence could state a prima facie case, he has failed to
rebut the Defendants’ proffered reason. See McDonnell Douglas Corp., 411 U.S. at 802.
As another contention of pretext, perhaps, Dr. Lawrence claims that the decision to
remove the posting violated the Alabama Community College System’s Uniform Guidelines,
which state that unless “the person filling the vacancy already had been fulfilling the
responsibilities of the position,” Lawson State is required to post the position for at least 21 days.
Doc. 26 at 19. The Uniform Guidelines state, however, that reorganization may be used “in
cases of expansion or reassignment of duties.” Doc. 27-4 at 62.
13

To establish a prima facie claim of harassment under Title VII or Section
1981, a plaintiff must prove that (1) she belongs to a protected group; (2) the
employer subjected her to unwelcome harassment; (3) the harassment was based
on her protected status; (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).

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). “In determining the objective element,
a court looks to all the circumstances, including the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee’s work performance.” McCann v. Tillman, 526 F.3d 1370, 1378
(11th Cir. 2008) (internal quotations omitted).
Summary judgment is due on the hostile work environment claims because
of Dr. Lawrence’s failure to show that the alleged harassment was due to his
protected status or that the alleged conduct rises to the level necessary for a hostile
environment claim. First, there is no evidence that anyone ever directed any
gender or race-based comments towards him. In fact, the only comment in the

14

record that arguably qualifies is Crews’ remark that a white male employee “was
not going to push this black girl around.” Doc. 26 at 34. However, this comment,
and the other examples Dr. Lawrence cites to support his claim—i.e. his contention
that Crews and Dr. Ward favored African Americans and females in their selection
decisions—are insufficient for a reasonable jury to conclude that Dr. Ward and/or
Crews subjected Dr. Lawrence to a hostile work environment “based on” his
gender or race. See Cotton, 434 F.3d at 1231. To prevail, Dr. Lawrence must do
more than show evidence of potential bias by the alleged harasser. Rather, he must
establish a causal nexus between the alleged harassment and the purportedly
discriminatory conduct he is relying on to support the harassment claim. See id. at
1231-32. Dr. Lawrence has failed to do so here.
Moreover, Dr. Lawrence cannot show that the alleged conduct rises to an
objectively severe or pervasive level.

Although the alleged harassment was

subjectively severe to Dr. Lawrence and resulted in the need for medical
treatment,8 see doc. 22-1 at 23-24, a reasonable person would not find this
treatment so severe or pervasive as to unreasonably interfere with his job
performance. For example, although Dr. Lawrence was dissatisfied with Crews’
evaluation of his performance, he admitted that his overall score was above
8

Dr. Lawrence sought treatment for acid reflux, heart palpitations, high blood pressure,
and diabetes, high cholesterol, and sleep apnea. Doc. 24-2-1 at 24. However, as the Defendants
correctly note in their reply, doc. 28 at 9-10, Dr. Lawrence could not say with certainty that his
work environment caused the conditions. Doc. 24-2-1 at 24.
15

average. See docs. 22-1 at 16; 22-6 at 72-76. Moreover, there is no suggestion in
the record that the evaluation impacted his pay or his job in general. In general,
Dr. Lawrence does not allege that Dr. Ward or Crews physically threatened him,
and the daily humiliation he complains of—Crews’ “undermining” of his
authority—amounts to little more than ordinary squabbles in a typical workplace
between an employee who believes he can do more than his supervisor will allow.9
At best, Dr. Lawrence points to “sporadic and isolated” incidents of treatment that,
perhaps unfair, are not objectively humiliating such that they would unreasonably
interfere with the job performance of a reasonable person. See McCann, 526 F.3d
at 1378.
In sum, the evidence in the record falls well short of meeting the threshold
for sustaining a hostile work environment claim in this circuit. See id. at 1379
(affirming summary judgment on a racially hostile work environment claim where
supervisor called the plaintiff “girl” and called two male black employees “boys”
and a different supervisor used a racial slur on two occassions); Mendoza v.
Borden, Inc., 195 F.3d 1238, 1247 (11th Cir. 1999) (affirming summary judgment

9

Certain humiliating job actions can create a hostile work environment. See Gowski v.
Peake, 682 F.3d 1299, 1314 (11th Cir. 2012) (finding a hostile work environment where
employees were targeted with a campaign to force them to resign by limiting their hospital
privileges and access, removed from committees and projects, prohibited from conducting
research, reassigned to different wards, and given low proficiency ratings). The record here,
however, which consists of a contention that a supervisor failed to include the plaintiff in all
decisions or engaged in conduct that undermined the plaintiff to his subordinates, does not
qualify as objectively severe or pervasive harassment.
16

on a sexually hostile work environment claim where a male supervisor sexually
harassed a female over a period of sixteen months—including rubbing his hip
against hers and “constant[ly] following” her).

While Dr. Lawrence has a

subjective right to be offended by the conduct he cites, Title VII is not a “general
civility code for the American workplace.” Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 80 (1998). Accordingly, summary judgment is due to be granted
on Counts Three, Four, Six, and Seven.
C. Retaliation Claims
In Counts Two, Five, and Eight, Dr. Lawrence alleges that the Defendants
retaliated against him in violation of Section 1981 and Title VII for filing an EEOC
charge by: (1) removing him from an email chain about a grant project; (2)
directing him to conduct an internal audit without first informing the affected
employees to expect a call from Dr. Lawrence; and (3) giving him “the lowest
evaluation score [he has] received in [his] career.” Doc. 15-2 at 7. To establish
a prima facie case of retaliation under either Title VII or Section 1981, including
for a “retaliatory hostile work environment,” 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 have
occurred but for the protected activity. Univ. of Texas Sw. Med. Ctr. v. Nassar,
133 S. Ct. 2517, 2533 (2013); see also Gowski v. Peake, 682 F.3d 1299, 1314
17

(11th Cir. 2012); Bryant v. Jones, 575 F.3d 1281, 1307-08 (11th Cir. 2009). For
the reasons stated below, Dr. Lawrence cannot show a causal connection between
his protected activity and the alleged retaliatory conduct.
Even assuming that Dr. Lawrence can prove that the alleged conduct he
references constitutes an adverse employment action,10 his retaliation claims fail
because he cannot show a causal connection between his protected activity and the
bulk of the alleged adverse conduct. Generally, to prove causation, a plaintiff must
show “that the defendant was actually aware of the protected expression at the time
the defendant took the adverse employment action.” Raney v. Vinson Guard Serv.,
Inc., 120 F.3d 1192, 1197 (11th Cir. 1997). Dr. Lawrence cannot make that
showing here because his amended EEOC charge alleges retaliation that occurred
primarily between “January of 2016 and April 6, 2016,” doc. 15-2, which means it
occurred before Defendants received notice of the EEOC charge. Specifically, the
evidence is unrebutted that Janice McGee, Lawson State’s Human Resources
Director, received the initial EEOC charge on April 28, 2016, due to the EEOC
sending it initially to the wrong email address, doc. 22-9 at 3, and Dr. Ward and
Crews also claim they received notice of the charge the same day. Docs. 22-7 at 4;
22-8 at 5. In absence of any evidence in the record to rebut these contentions, Dr.
10

Only a “serious and material change in the terms, conditions, or privileges of
employment . . . as viewed by a reasonable person in the circumstances” qualifies as an “adverse
employment action.” Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001).
The alleged conduct pleaded in the Second Amended Complaint falls short of meeting this
standard.
18

Lawrence has failed to prove that his EEOC charge was the cause of the alleged
retaliation that occurred between January 2016 and April 2016. See e.g., Clark
Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (“[T]here is no indication that
[the supervisor] even knew about the right-to-sue letter when she proposed
transferring [the plaintiff].”).
As for the post-April 2016 conduct, Dr. Lawrence pleads in his complaint
that “from April of 2016 to September of 2016 . . . Crews also failed to provide
[him] with the job title or authority that would correspond with the auditing duties,
stating that such would be provided on September 30, 2016,” that she required him
to perform the duties without “the title which would convey the authority to
complete these tasks,” and that she finally gave him the “appropriate job title in
September of 2016, [as she promised].” Doc. 15 at 18-19. Allegedly, the delay in
providing the title constituted an adverse employment action because “it appeared
that [he] was being set up to fail during that period, which is a vital period that will
be reflected on his September 30, 2016 evaluation.” Id. at 15. It seems Dr.
Lawrence has abandoned this purported retaliatory claim in light of his failure to
raise it in opposition to the motion for summary judgment. See Sapuppo v. Allstate
Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“A party fails to adequately
brief a claim when he does not plainly and prominently raise it, for instance by
devoting a discrete section of his argument to those claims.”) (quoting Cole v. U.S.

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Atty. Gen., 712 F.3d 517, 530 (11th Cir. 2013)). More significantly, the claim fails
because it falls far short of rising to an adverse action and is based on speculation
about being set up to fail for his September 30, 2016 evaluation. Purportedly bad
evaluations which do not result in any loss in pay or negative change in status are
not adverse actions. See Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1241
(11th Cir. 2001) (“[C]riticisms of an employee’s job performance—written or
oral—that do not lead to tangible job consequences will rarely form a permissible
predicate for a Title VII suit.”).
Moreover, Dr. Lawrence does not claim that he received a bad evaluation or
that Crews’ purported “set up” resulted in any tangible consequence. To the
contrary, although the complaint and the record do not show why Crews told Dr.
Lawrence that he had to wait until September to get the title, by Dr. Lawrence’s
own pleading, he received the title on the date promised. Doc. 15 at 18-19.
Therefore, in the absence of any allegation that the delay deprived him of any pay
increase, there is no adverse action. See Davis, 245 F.3d at 1241.
For all these reasons, the retaliation claims also fail.
CONCLUSION
Consistent with this opinion, the Defendants Motion for Summary
Judgment, doc. 20, is due to be granted. A separate order will be entered.

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DONE the 6th day of March, 2018.
_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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