Bowman v. City of Birmingham
Filing
52
MEMORANDUM OPINION AND ORDER consistent with this opinion the City's MOTION to Strike 41 is GRANTED solely as to paragraphs 15 and 17 of Bowman's November 2018 affidavit, and Bowman's MOTION to Strike 49 is DENIED< /b>. Therefore, the court STRIKES paragraphs 15 and 17 and the Clerk is DIRECTED to seal Bowman's November 2018 Affidavit, docs 36 and 41-1. Bowman's motion for summary judgment, 35 is DENIED, and the City's mo tion, 32 is GRANTED solely as to the retaliation claims related to the threat of termination, overall Crossplex events manager role, maintenance manager role, and cashier role assignment. Accordingly, these four claims are DISMISSED WITH PREJUDICE. Pretrial Conference set for 2/8/2019 at 2:30 PM; Jury Trial set for 3/18/2019 at 9:00 AM; BOTH in the Hugo L Black US Courthouse, Birmingham, AL before Judge Abdul K Kallon. Signed by Judge Abdul K Kallon on 2/7/2019. (AFS)
FILED
2019 Feb-07 AM 10:28
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CALVIN BOWMAN,
Plaintiff,
v.
THE CITY OF BIRMINGHAM
Defendant.
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Civil Action Number
2:18-cv-00364-AKK
MEMORANDUM OPINION AND ORDER
Calvin Bowman, proceeding pro se, asserts retaliation claims under Title VII
of the Civil Rights Acts of 1964, 42 U.S.C. § 2000e-2 (“Title VII”), against the
City of Birmingham. Doc. 29. More specifically, Bowman alleges that the City
retaliated against him through five discrete acts after he filed a prior lawsuit against
the City and two employees, see Bowman v. City of Birmingham, et al., No. 2:17cv-00255-AKK (“Bowman III”). The City has now moved for summary judgment
arguing, among other things, that the alleged retaliatory acts fail to rise to an
adverse action, and that Bowman cannot show that the City’s articulated reasons
for the challenged conduct are pretextual. See doc. 32. For his part, Bowman has
moved for partial summary judgment on two of the five discrete acts of retaliation
– the threat of termination and a written reprimand. See doc. 35. Based on the
1
evidence and consideration of relevant law, Bowman’s motion is due to be denied,
and the City’s motion is due to be granted except as to the written reprimand.
I. MOTIONS TO STRIKE
The court turns first to the parties’ motions to strike evidence, docs. 41 and
49, they each rely on in support of their respective summary judgment motions.
The court sets aside the somewhat unsettled question of whether a motion to strike
is the procedurally correct vehicle to challenge an evidentiary attachment to a
motion. See Jeter v. Montgomery Cty., 480 F. Supp. 2d 1293, 1296 (M.D. Ala.
2007) (declining to strike exhibits because motions to strike are only properly
granted with respect to pleadings). But see Thomas v. Ala. Counsel on Human
Relations, Inc., 248 F. Supp. 2d 1105, 1112 (M.D. Ala. 2003) (explaining that
“[a]ffidavits which fail to meet the standards set forth in Rule 56(e) may be subject
to a motion to strike”). Regardless of whether a motion to strike is proper here, the
court may only consider the evidence so long as “the statement[s] could be reduced
to admissible evidence at trial.” Macuba v. Deboer, 193 F.3d 1316, 1323 (11th
Cir. 1999). Given that the court’s role at summary judgment is to require the nonmovant to show “that she can make good on the promise of the pleadings by laying
out enough evidence that will be admissible at trial to demonstrate that a genuine
issue of material fact exists,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986), there is a difference between considering evidence that does not strictly
2
conform to the rules of evidence, at least as presented, but has some probative
value and a statement that lacks any indicia of reliability at all.
A. The City’s Motion
The City moves to strike portions of Bowman’s November 2018 affidavit,
doc. 36 at 29, asserting that paragraphs 12-18 reference statements that are
“private, confidential, and privileged from process and discovery” pursuant to the
court’s mediation order, doc. 33-1, and Federal Rule of Evidence 408, and that
paragraphs 13-15 and 17-18 contain inadmissible hearsay. Doc. 41. Although the
City is correct that mediation proceedings are generally confidential, the bulk of
the statements in Bowman’s affidavit reference matters that are in the record
independent of the mediation proceeding – paragraph 12 references the parties
engaging in a second mediation, see doc. 33 in Bowman III; paragraphs 13, 14, 16
reference Bowman’s violations of the City’s email policies, see docs. 33-2 and 333; and paragraph 18 references Bowman’s personal observation of alleged
violations of the City’s computer policies which he later describes in his December
2018 affidavit, see doc. 47-1.
The City notes correctly, however, that paragraphs 15 and 17 reference
comments the mediator purportedly relayed to Bowman from the Bowman III
defendants, in particular that these individuals threatened to discharge Bowman if
he rejected their settlement offer.
Generally, the disclosure of the specific
3
settlement offer would violate the mediation order and Rule 408’s protection of
confidential negotiations.
However, the comment is prominently featured in
Bowman’s complaint and amended complaints, docs. 1 at 35, 2 at 35, and 29 at 7,
and are already in the public record. Moreover, although the Eleventh Circuit has
not ruled on this issue precisely, other circuit courts have held that Rule 408 does
not exclude negotiation statements of “alleged threats to retaliate for activity
protected” which “serve to prove liability . . . for making . . . the threats,” see
Uforma/Shelby Bus. Forms, Inc. v. N.L.R.B., 111 F.3d 1284, 1294 (6th Cir. 1997),
or negotiation statements that “involved a different claim than the one at issue in
the current trial,” see Broadcort Capital Corp. v. Summa Med. Corp., 972 F.2d
1183, 1194 (10th Cir. 1992). 1
Nonetheless, Bowman must still demonstrate that the discharge threats
satisfy a hearsay exception. Because paragraphs 15 and 17 contain hearsay within
hearsay (i.e. the mediator’s relay of the defendants’ purported statements), the
court must determine if “each part of the combined statements conforms with an
exception to the rule.” Fed. R. Evid. 805. The mediator’s statement to Bowman
about the City’s purported threats to discharge him fails to satisfy any hearsay
exception. The court is not convinced by Bowman’s contention that the mediator’s
1
The alleged threats in Uforma were not considered hearsay because the employer’s human
resources manager, who was able to testify at trial, directly told the employees about the alleged
threat. 111 F.3d at 1287–88. Similarly, in Broadcort Capital Corp., the witness who heard the
statements directly from one of the negotiating parties testified at trial and the statements
concerned settlement discussions related to a different claim. 972 F.2d at 1194.
4
statements are not hearsay under Federal Rule of Evidence 801(d)(2)(C) because
“the City . . . authorized the mediator to make the statements” to Bowman. See
doc. 43 at 3. A mediator is not by definition an agent of any party. Rather, the
“mediator facilitates discussions among litigants to assist them in identifying the
underlying issues and in developing a creative and responsive settlement package.”
See ALND Alternative Dispute Resolution Plan, Sec. IV Mediation. Similarly,
Bowman’s contention that the mediator’s statements are not hearsay because he is
offering them “solely for the purpose of proving that the statement (i.e., adverse
action) was made, not for the truth of the statement,” doc. 43 at 3, is unavailing. In
light of Bowman’s contention that the City retaliated against him by threatening
him with termination, there is no other reason for him to offer the evidence except
to establish the truth of what the mediator asserted. Therefore, because the
mediator is unable to testify at trial, the statements are inadmissible. United States
v. Dotson, 821 F.2d 1034, 1035 (5th Cir. 1987) (“The mere fact that one level of a
multiple-level statement qualifies as ‘nonhearsay’ does not excuse the other levels
from rule 805’s mandate that each level satisfy an exception to the hearsay rule for
the statement to be admissible.”).
Accordingly, Bowman’s references to the
specific settlement offer terms and the alleged threat to discharge Bowman are due
to be stricken. See Rowell v. BellSouth Corp., 433 F.3d 794, 800 (11th Cir. 2005)
5
(“On motions for summary judgment, we may consider only that evidence which
can be reduced to an admissible form.”).
B. Bowman’s Motion
Bowman moves to strike new arguments regarding a pay increase the City
raises in its reply brief. Doc. 49. The City contends that it did not raise this
argument initially because Bowman failed to plead in his second amended
complaint that the City denied him a pay raise for violating the City’s computer
policy, and only raised this contention in his response to the City’s motion. Doc.
50. Bowman is correct that, generally, “[a]rguments raised for the first time in a
reply brief are not properly before a reviewing court.” United States v. Coy, 19
F.3d 629, 632 n. 7 (11th Cir. 1994). However, in his second amended complaint,
Bowman alleges broadly that the City issued him a written reprimand, among other
retaliatory acts, which collectively led to “pecuniary harm.”
Doc. 29 at 13.
Bowman only described the alleged pecuniary harm — a purported a denial of a
“5% pay raise . . . in October 2017” — in his response to the City’s motion for
summary judgment. Doc. 42 at 15. “Liberal pleading does not require that, at the
summary judgment stage, defendants must infer all possible claims that could arise
out of facts set forth in the complaint.” Gilmour v. Gates, McDonald & Co., 382
F.3d 1312, 1315 (11th Cir. 2004). Where, as here, Bowman waited until his
summary judgment briefing to describe the pay issue, despite possessing the
6
information when he filed this lawsuit, the City properly used its reply brief to
rebut Bowman’s clarified contention that the written reprimand influenced Oates’
decision to deny him a pay raise. See San Francisco Residence Club, Inc. v.
Baswell-Guthrie, 897 F. Supp. 2d 1122, 1202 (N.D. Ala. 2012) (citing Davis v.
Coca-Cola Bottling Co. Consol., 516 F.3d 955, 975 (11th Cir. 2008)).
Bowman also moves to strike Faye Oates’ December 2018 affidavit, doc.
46-1, contending that the City failed to obtain leave to file evidentiary materials
after the deadline. Docs. 28 and 49. Upon review, paragraphs 1-4 of the affidavit
reference testimony that Oates provided in a prior deposition about the Crossplex
event assignment policy, and paragraphs 5-10 attempt to clarify why Bowman did
not receive a pay raise in October or November 2017. Doc. 37-2 at 8.
As
explained above, the City properly used Oates’ affidavit in its reply brief to rebut
new arguments Bowman raised in his response brief. Accordingly, Bowman’s
motion to strike, doc. 49, is due to be denied.
II. 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
7
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 (citation and internal quotation marks 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, 477 U.S. at 248.
On summary judgment motions, 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) (a court is not required to resolve disputes in the non-moving party’s
favor when that party’s version of events is supported by insufficient evidence).
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.
8
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).
The simple fact that both parties have filed partial motions for summary
judgment does not alter the ordinary standard of review. See Chambers & Co. v.
Equitable Life Assurance Soc., 224 F.2d 338, 345 (5th Cir. 1955) (explaining that
cross-motions for summary judgment “[do] not warrant the granting of either
motion if the record reflects a genuine issue of fact”). Rather, the court will
consider each motion separately “‘as each movant bears the burden of establishing
that no genuine issue of material fact exists and that it is entitled to judgment as a
matter of law.’” 3D Med. Imaging Sys., LLC v. Visage Imaging, Inc., 228 F. Supp.
3d 1331, 1336 (N.D. Ga. 2017) (quoting Shaw Constructors v. ICF Kaiser Eng’rs,
Inc., 395 F.3d 533, 538–39 (5th Cir. 2004)). The court notes that although crossmotions “‘may be probative of the non-existence of a factual dispute’” they “‘will
not, in themselves, warrant [the granting of] summary judgment.’” United States v.
Oakley, 744 F.2d 1553, 1555 (11th Cir. 1984) (quoting Bricklayers Int’l Union,
Local 15 v. Stuart Plastering Co., 512 F.2d 1017, 1023 (5th Cir. 1975)).
9
III. FACTUAL BACKGROUND
Since 1999, Bowman has worked for the City as an accountant and more
recently as a business officer in its Crossplex Department. Doc. 42 at 36. In
February 2017, Bowman filed his third lawsuit 2 against the City. Id. at 37. During
their second mediation session in October 2017, Bowman became upset over the
City’s settlement offer and purported threat to discharge him. Id. at 38. Bowman
argues that the City engaged in four other discrete acts of retaliation allegedly in
response to his rejection of the settlement offer — (1) a little over a week after
mediation, the City issued Bowman, through his supervisor Faye Oates (Director
of the Birmingham Crossplex), a written reprimand for violating the City’s
computer use policy. 3 Docs. 33-3, 33-5 at 2, 37-1 at 9, 33-4 at 7; (2) under its
assignment policy, 4 the City denied Bowman the opportunity to work at events as a
maintenance manager. Docs. 33-4 at 13-15, 46-1 at 17-18; (3) the City denied
2
Bowman sued the City in 2004, see Bowman v. City of Birmingham, 2:04-CV-03487-RDP
(“Bowman I”), and in 2010, see Bowman v. City of Birmingham, 2:10-CV-00483-PWG
(“Bowman II”).
3
Executive Order #72-95 dated February 2010 prohibits employees from using City equipment
“to access non-business related internet sites to conduct personal business or for personal
entertainment.” Doc. 33-2 at 1. Although the policy did not prohibit “occasional personal use,”
it prohibited employees from using computers that “interfere with the City activities and
responsibilities” or “performance of personnel duties.” Id. at 3. In Bowman’s case, Jarvis Patton
(the City’s Chief of Operations) discovered in preparation for mediation that Bowman had
scanned personal documents at work and was emailing the City’s attorney about his third
lawsuit.
4
The Crossplex consists of three venues – a pool, a track, and an arena that are used for athletic
events. In October 2016, Oates established a policy that if “anyone on the CrossPlex staff is
going to work outside of their duties [during events], they have to have a post” and formally
“sign up as an event worker.” Doc. 37-2 at 7-8. The City utilizes this event worker signup sheet
to staff events at the Crossplex. Id.
10
Bowman the opportunity to work as “Overall Manager” during events. Docs. 33-4
at 14, 46-1 at 23; and (4) after initially assigning Bowman to work as a cashier at
the 2018 NCAA Indoor Track & Field Championship, the City informed Bowman
that it no longer needed him for the event due to lower than projected attendance
rates and ticket sales. Doc. 46-1 at 18, 20-21. These alleged retaliatory acts are the
basis for this lawsuit.
IV. ANALYSIS
The City has moved for summary judgment fully, doc. 32, and Bowman has
moved on two of the five alleged retaliatory acts – the threats to discharge him and
issuance of a written reprimand regarding misuse of work computers, doc. 35.
However, because Bowman’s contention regarding the discharge threat is based on
inadmissible hearsay, this claim fails. 5 As such, the court will only consider the
City’s motion on the four remaining acts and Bowman’s motion on the written
reprimand.
5
Moreover, unrealized threats of discharge do not constitute adverse actions when they cause no
objective change in employment. See Van Der Meulen v. Brinker Int’l, 153 F. App’x 649, 655
(11th Cir. 2005). Bowman devotes a substantial portion of his amended complaint describing
how the threat caused him “emotional distress, mental anguish, and severe sleeplessness” which
led to a “physical injury” and “diagnosis of depression.” Doc. 29. Subjective allegations of
personal suffering “[do] not suffice for a showing of the requisite adverse action, despite the high
significance [Bowman] may personally attribute to it.” Ewing v. Moore, No. 7:17-CV-00743LSC, 2018 WL 3852297, at *7 (N.D. Ala. Aug. 13, 2018); see Burlington N. & Santa Fe Ry. Co.
v. White, 548 U.S. 53, 68–69, (2006) (“An objective standard is judicially administrable. It
avoids the uncertainties and unfair discrepancies that can plague a judicial effort to determine a
plaintiff’s unusual subjective feelings.”).
11
Title VII prohibits employers from retaliating against employees who
oppose an unlawful employment practice. 42 U.S.C. § 2000e-3(a). Where, as here,
the evidence of retaliation is entirely circumstantial, the burden of proof shifts
between the employee and employer according to the McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1972), analytical framework. Furcron v. Mail Centers Plus,
LLC, 843 F.3d 1295, 1310 (11th Cir. 2016). Initially, the employee 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, 570 U.S. 338, 360 (2013). If the employee establishes a prima facie case,
the burden shifts to the employer to “proffer a legitimate, non-discriminatory
reason for the adverse employment action,” but this burden is “exceedingly light.”
Meeks v. Computer Assocs. Int’l, 15 F.3d 1013, 1021 (11th Cir. 1994) (quoting
Tipton v. Canadian Imperial Bank of Commerce, 872 F.2d 1491, 1495 (11th Cir.
1989)). If the defendant meets its burden, “the burden shifts back to the plaintiff to
produce evidence that the employer’s proffered reasons are a pretext for
discrimination.” Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1264 (11th
Cir. 2010).
12
A. Whether Bowman Established a Prima Facie Case
The parties agree that Bowman engaged in a statutorily protected activity by
filing Bowman III. See Gerard v. Board of Regents of State of Ga., 324 Fed. Appx.
818, 825 (11th Cir. 2009) (“Statutorily protected expression includes internal
complaints of discrimination to superiors, as well as complaints lodged with the
EEOC and discrimination-based lawsuits.”). Therefore, the crux of the dispute
hinges on whether Bowman can satisfy the adverse employment action and casual
relation prongs of the prima facie case.
1. Whether Bowman suffered an adverse action
An adverse employment action requires that the employee “show either
ultimate employment decision, i.e. termination, failure to hire, or demotion, or, for
conduct falling short of ultimate employment decision, serious and material
change in terms, conditions or privileges of employment.” Crawford v. Carroll,
529 F.3d 961 (11th Cir. 2008) (emphasis in original). When an employee alleges
“discrete acts” of retaliation, “each retaliatory adverse employment decision
constitutes a separate actionable unlawful employment practice.” Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). “The court assesses
whether an employment action is materially adverse by deciding whether a
reasonable person would have found it materially adverse; a plaintiff’s subjective
opinion about the employment action does not control the assessment.” Jones v.
13
City of Birmingham, No. 2:16-CV-01121-RDP, 2018 WL 2735636, at *5 (N.D.
Ala. June 7, 2018).
In arguing that Bowman cannot show an adverse action, the City focuses
solely on the written reprimand. Doc. 34 at 11-12. However, Bowman alleges
also that he suffered adverse employment actions through a denial of a five percent
pay raise, management roles, and a cashier assignment. Doc. 29. The City does
not challenge these contentions on adverse action grounds. As a result, even if the
City is correct that the reprimand is not an adverse action,6 when the reprimand is
considered in conjunction with Bowman’s other unchallenged contentions,
Bowman has in fact satisfied the adverse action prong. See Shannon v. Bellsouth
Telecommunications, Inc., 292 F.3d 712, 716 (11th Cir. 2002) (While individual
actions “might not have individually risen to the level of adverse employment
action under Title VII, when those actions are considered collectively, the total
weight of them does constitute an adverse employment action.”).
2. Whether Bowman has established that the adverse actions are causally
related to his protected activity
To satisfy the causation element, Bowman must prove that but-for the City’s
desire to retaliate, he would not have suffered the adverse employment actions.
6
While the City is generally correct that a “reprimand . . . does not constitute an adverse
employment action when the employee suffers no tangible harm as a result,” Pennington v. City
of Huntsville, 261 F.3d 1262, 1267 (11th Cir. 2001), Bowman maintains that the written
reprimand resulted in an “eight-month loss of a pay raise.” See docs. 36 at 29 and 46-1.
14
Booth v. Pasco Cnty., 757 F.3d 1198, 1207 (11th Cir. 2014) (citing Nassar, 570
U.S. at 363). 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 n.30 (11th Cir. 2003) (citation
omitted).
Bowman has made this showing. Specifically, Patton discovered Bowman’s
misuse of the City’s computers and email for his personal lawsuit when preparing
for the mediation in Bowman III. Thereafter, Patton shared his findings with
Bowman’s direct supervisor, and she, in turn, issued the written reprimand a little
over a week later and engaged in the other retaliatory acts within a few months of
the mediation. Because of Patton’s awareness of the protected activity and the
short timeframe between the mediation and the adverse actions, Bowman has
sufficiently created a presumption of causation to establish a prima facie case.
B. Whether the City Offers Legitimate Non-Discriminatory Reasons
and Bowman Demonstrates Pretext
“Once a plaintiff establishes a prima facie case of retaliation, the burden of
production shifts to the defendant to rebut the presumption by articulating a
legitimate, non-discriminatory reason for the adverse employment action.” Bryant
v. Jones, 575 F.3d 1281, 1308 (11th Cir. 2009). The court will address next the
parties’ respective contentions for each alleged retaliatory act. Doc. 34 at 14-17.
15
1. Written Reprimand
The City asserts it issued the written reprimand because Bowman violated
former Mayor William A. Bell’s memorandum that instructed City employees that
use of internet, computer, electronic equipment and email is “authorized for
official business only.” Doc. 33-2 at 2. Employees who “violate these policies will
be subject to disciplinary actions, up to and including employment termination.”
Id. Indeed, Bowman concedes that he used his City computer and email to send
personal emails to the City’s attorney about the Bowman III lawsuit. See docs. 371 at 8-11, 37-2 at 12-14, and 33-4 at 7-8 (“No, I don’t deny that I sent you emails .
. . [from] my City email.”). Viewed in this light, the City has met its burden of
showing that it issued the reprimand for legitimate, non-retaliatory reasons.
Therefore, the burden shifts to Bowman to show pretext. Alvarez, 610 F. 3d.
at 1264. “A reason is not pretext for discrimination ‘unless it is shown both that
the reason was false, and that discrimination was the real reason.’” Brooks v. Cnty.
Com’n of Jefferson Cnty., Ala., 446 F.3d 1160, 1163 (11th Cir. 2006) (citing St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)) (emphasis added).
Moreover, Bowman cannot recast the proffered reason but “must meet it head on
and
rebut
it,”
showing
“weaknesses,
implausibilities,
inconsistencies,
incoherencies, or contradictions in the employer’s rationale.” Trigo v. City of
Doral, 663 Fed. App’x 871, 873 (11th Cir. 2016) (citing Holland v. Gee, 677 F.3d
16
1047, 1055-56 (11th Cir. 2012)). If Bowman fails to demonstrate a genuine
dispute as to a material fact regarding pretext, the City is entitled to summary
judgment. Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997).
To show pretext, Bowman maintains that several other employees violated
the same policy without facing any discipline. Doc. 42 at 19-24. “While a plaintiff
can attempt to meet his burden of showing pretext with evidence that other
employees were treated differently despite engaging in similar acts as the plaintiff,
the plaintiff must show that the other employees are similarly situated to the
plaintiff in all relevant respects.” Rioux v. City of Atlanta, Ga., 520 F.3d 1269,
1280 (11th Cir. 2008) (citation omitted). “[T]o determine whether employees are
similarly situated, [the court] evaluate[s] whether the employees are involved in or
accused of the same or similar conduct and are disciplined [by the same decision
maker] in different ways.” Burke-Fowler v. Orange Cty., Fla., 447 F.3d 1319,
1323 (11th Cir. 2006) (citing McDonnell Douglas, 411 U.S. at 805).
a. Faye Oates
Bowman testified that he “periodically observed Faye Oates watching
YouTube videos on her City computer between 2014 and 2017,” doc. 42 at 39.
The reliance on Oates is flawed for multiple reasons. As an initial matter, there is
a difference between “periodically” watching YouTube videos and Bowman’s
alleged conduct of using his City computer and email to send a binder full of
17
emails and attachments about his personal lawsuit. Indeed, Bowman does not
explain how Oates’ conduct falls outside the exception for occasional personal use
that is deemed as acceptable under the policy. Moreover, there is no evidence that
Patton knew about Oates’ conduct other than Bowman’s contention that he told
Patton about it during the mediation in response to the purported threat to
discharge him. Id. at 39-40. See Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d
1313, 1317 n. 5 (11th Cir. 2003) (finding that a supervisor must have actual
knowledge of the misconduct for an employee to be considered similarly situated
when comparing disciplinary actions). And even with Bowman’s report to Patton,
to the extent that the City has the ability to track down Oates’ web history to
ascertain whether she exceeded the allowed occasional personal use, Bowman has
not presented any such evidence. Indeed, there is no evidence that the City can
even capture data on websites a specific employee visited for the months preceding
Bowman’s complaint to Patton or as far back as 2014 when Bowman alleges he
first observed Oates’ conduct. In contrast, apparently the City can capture emails,
as it maintains that Patton became directly aware of Bowman’s conduct through
emails that Bowman sent to the City’s attorney in Bowman III. Therefore, on this
record, Bowman has failed to establish that he is similarly situated to Oates.
18
b. Kim Jackson
Bowman claims next that Jackson used the City’s copier for personal
reasons. Specifically, Sandra Brown, an administrative supervisor in charge of
payroll and timekeeping, testified about Jackson making copies and scanning
documents on the City’s copier for her personal business. Docs. 36 at 46; 42 at 22,
42. Bowman testified also that he periodically observed Jackson make copies of
sales documents in the copier room and that in 2012 he reported Jackson to Kevin
Moore, former director of the Crossplex, who purportedly did not discipline
Jackson.
Doc. 42 at 22, 78.
The contentions against Jackson fall short of
establishing that she is “similarly situated to [Bowman] in all relevant respects.”
Rioux, 520 F.3d at 1280. First, Bowman is charged with violating a policy related
to internet/email usage. Doc. 33-2. According to the memorandum announcing the
policy, the City implemented the policy to address concerns related to internet
security breaches, spyware, and viruses: “Internet use brings the possibility of
serious breaches to the security of confidential information, contamination to our
system via viruses or spyware, and unnecessary distractions from our expected
work and productivity.” Id. at 2. The actual policy includes prefatory language
stating, “The following policies deal with Internet, Intranet, Wide Area Network
(WAN), e-mail, online services, and desktop computer policies.” Id. at 4. Using a
copier falls outside of the policy and the concerns it addressed. See id., generally.
19
Second, Bowman has failed to offer any evidence that Patton, who made the
decision to discipline him, knew of Jackson’s purported use of the copier for
personal needs – assuming such practice is even prohibited. There is no evidence
in the record that Moore forwarded Bowman’s report about Jackson’s misconduct
to Patton. See Silvera v. Orange County Sch. Bd., 244 F.3d 1253, 1261 n.5 (11th
Cir. 2001) (“differences in treatment by different supervisors or decision makers
can seldom be the basis for a viable claim of discrimination”). Finally, to the
extent the policy related to internet/email usage covers copy machines, Bowman
has also failed to present evidence that Jackson’s personal use exceeded the
occasional use permitted under the policy. Therefore, under this record, Bowman
has failed to show that he is similarly situated to Jackson in all relevant respects.
See Burke-Fowler, 447 F.3d at 1323.
c. Tara Nix
Similar to Jackson, Bowman contends that he witnessed Nix use the City’s
copier to copy and scan documents to her City email for her rental property
business, doc. 42 at 43-44, and that Sandra Brown also witnessed Nix grabbing
copies related to rental properties at the copy machine, doc. 36 at 44-45. Again, the
internet/email usage policy Bowman purportedly violated does not apply to
copying machines. See supra at Section (B)(1)(b).
Moreover, even if it did,
Bowman reported his single observation of Nix using the copy machine in 2015 to
20
Oates who allegedly did not discipline Nix. Doc. 47-1 at 7. The one or two
infractions Bowman and Brown cite are different from the documented multiple
violations by Bowman, who concedes that he “prepared [multiple documents] at
home on his personal computer and . . . attached [them] to a few of his [work]
emails.” Doc. 42 at 20. See e.g. Curtis v. Broward Cty., 292 F. App’x 882, 884
(11th Cir. 2008) (“[Female employee] did not establish that [male employee]
engaged in the same quantity of misconduct that she did, alleging that he hung up
on a customer once or, at most, twice, while she had hung up on that customer four
times.”); Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999) (holding that a
female employee was not similarly situated to three male employees because the
male employees were involved in only a single incident of alleged misconduct,
while the female employee committed “at least four policy violations”). Finally,
Bowman fails to offer any evidence that Patton knew about Nix’s misuse of the
City’s copier and failed to discipline her. Accordingly, Bowman’s reliance on Nix
to demonstrate pretext also fails.
d. Bowman’s Prior Computer Misuse
Lastly, Bowman maintains that the City’s decision to discipline him is
pretextual because he used the City’s email in September 2010 to communicate
with the City’s attorney about a prior lawsuit, Bowman II, without any similar
repercussions
Accepting Bowman’s contentions as true, apparently, Bowman
21
spoke with Patton about this 2010 communication during his second lawsuit, and
Patton “never told [Bowman] that [his] emails violated City policy, . . . never
sought discipline, . . . and never threatened to terminate [his] employment with the
City for those emails.” Doc. 47-1 at 7. However, when Bowman violated the
City’s policy during Bowman III in 2017, Patton “called IMS [the City’s internal
computer department,] and asked them to provide . . . information from
[Bowman’s] City computer.” Doc. 37-1 at 8-9. Bowman maintains that Patton
only did so because Bowman named him as a defendant in Bowman III. As a
result of this prepared audit report, which Patton describes as being “two inches
thick” and Oates maintains it contained “a hundred pages of documents,” Oates,
under the direction of Patton, sent Bowman a written warning that Bowman should
“cease and desist from using City equipment for personal use.” See docs. 33-3 at
2; 37-1 at 9; 37-2 at 13. In light of Patton’s alleged awareness of Bowman’s
misconduct in Bowman II and the City’s failure to refute or explain why it took no
disciplinary action against Bowman at the time, Bowman has provided
circumstantial evidence to create a triable issue on whether the City’s articulated
reasons for issuing the reprimand is pretextual. Smith v. Lockheed-Martin Corp.,
644 F.3d 1321, 1328–29 (11th Cir. 2011) (“the plaintiff will always survive
summary judgment if he presents circumstantial evidence that creates a triable
issue concerning the employer’s . . . intent.”).
22
Bowman’s own motion related to this reprimand is also due to be denied.
An issue of fact exists regarding whether the 2017 misuse, unlike the 2010 use, far
exceeded the occasional use permitted by the policy. Accordingly, Bowman’s case
will proceed to trial on the written reprimand claim, during which, among other
things, Bowman will have to present evidence on how this reprimand qualifies as
an adverse action.
2. Denial of Requests to be Maintenance Manager at Crossplex Events
The next alleged retaliatory act is the denial of the requests to work as
maintenance manager at Crossplex events. More specifically, there are two events
in question — December 30, 2017 when Bowman worked and a subsequent
request a few weeks later that Oates denied. At issue here is Bowman’s contention
that he did not have to sign up to work at events in light of the temporary
maintenance duties assigned to him.
As general background, in early 2017, Wayne Staton left his position as the
maintenance supervisor of the Crossplex – a position which included many roles
such as supervising the set-up crew, maintenance staff, and events staff. Doc. 36 at
66. Sometime later that summer, Oates assigned Ricky Lee some of Staton’s
duties including the supervision of the maintenance staff and needs for the
department. Doc. 37-2 at 12-16. The City discharged Lee approximately five
months later, and Oates asked Bowman and other employees to take over
23
temporarily some of Lee’s job duties related to supervising the maintenance staff.
Id. The City maintains that it never formally designated Bowman, or any of the
other employees temporarily filling in the various roles of the maintenance staff, a
maintenance manager title or Staton’s and Lee’s formal titles which included
working at events. Id. at 15-16. As to Bowman, the City contends it assigned him
only specific maintenance tasks dealing with Bowman’s background in financial
management. Id. Consequently, to the extent that Bowman wanted to work outside
his normal duties at any of the events held at the Crossplex, the City asserts that
Bowman needed to express his interest on the signup sheet as any other employee.
Bowman maintains that Oates’ decision to assign him some of the duties of
the maintenance manager entitled him automatically to work at all the events at the
Crossplex. He adds that the City’s refusal to grant him this right resulted in loss of
“earning manager pay” at purportedly over fifty events. Doc. 42 at 25-30. To
support his contention, Bowman maintains that (1) Oates asked him to handle
everything maintenance related until the City hired someone permanent for the
role, doc. 33-4 at 35; (2) email exchanges with Oates reveal that she assigned him
responsibilities of hiring an electrician to address the electrical surge issues and to
maintain the sewer system at the Crossplex, doc. 42 at 50-52; (3) the City did not
require him to sign up for a formal event assignment post when Sandra Brown
asked him to substitute for her as the events manager, docs. 42 at 28; 34 at 6; and
24
(4) Oates denied his request to work during an event to oversee an electrical issue
but allowed another employee, who was also temporarily assigned some of the
maintenance roles, to work during events. Doc. 42 at 45. For the reasons stated
below, none of these contentions show that the City’s articulated reasons are
pretextual.
As an initial matter, Bowman has presented no evidence that Oates assigned
him all the maintenance supervisor roles or duties or any of Staton’s duties related
to supervising set-up and event crews. Doc. 36 at 66. According to Oates, she
“split duties up and assigned [the maintenance supervisor duties] to a few people.”
Doc. 37-2 at 15. Bowman concedes this point and acknowledges that he was not
the only “one to assume all of [the maintenance supervisor’s] duties” and that he
was in charge of some duties, including “making sure the repairs were done.” Id. at
14. See also doc. 33-4 at 10 (Bowman’s deposition that: “Q. So let me ask you
this. Were you told that you were literally going to completely replace Wayne
Staton when he announced him leaving the CrossPlex or, as Ms. Oates testified,
were you told that you were going to be given some of his responsibilities? Did
you take on every single one of Mr. Staton’s responsibilities or did Ms. Oates
divide those responsibilities among more than you? A. She divided them. She gave
me a portion, and I'm not -- I don't remember who else she gave the other portion
to.”).
25
Bowman also concedes that it was not clear whether the temporary duties he
received required him to work during Crossplex events, testifying that Oates
“never made a statement telling [him] to work events to cover maintenance . . .
[and] she never made a statement telling [him] not to.” Id. The issue of contention
here stemmed from Bowman’s decision to work during an event on Saturday,
December 30, 2017, when he purportedly assumed that he needed to oversee the
maintenance staff’s work that day on the heating system. Id. When Oates learned
that Bowman had worked that Saturday, Oates reminded Bowman of the event
assignment policy, which apparently Bowman never signed up for, and Bowman
replied that he “will not work anymore events.” Docs. 37-2 at 16 (Bowman’s
stating “I decided to work to make sure we did not have any maintenance problem
and to see exactly what the maintenance staff were doing during events . . . But as
instructed, I will not work anymore events.”) and 46-1 at 22 (Oates’ testimony that
“I do remember sending you an e-mail about working a post. When I assigned you
to serve as the liaison, we did not discuss you working events in Wayne’s capacity.
So I did say — I sent you an e-mail saying — reminding you of the policy. I think
I forwarded you an e-mail [about the policy] that I had sent a year or two prior.”).
The event assignment policy required that if “anyone on the CrossPlex staff is
going to work outside of their duties [during events], they have to have a post” and
formally “sign up as an event worker.” Doc. 37-2 at 7-8.
26
In addition to admitting that he informed Oates that he will no longer work
events, Bowman also concedes that he “never asked to be on one of [the City’s
events assignment] lists” and that Oates never prevented him from signing up for a
post. Doc. 33-4 at 16. Despite acknowledging the existence of the signup policy
and that he had not utilized it, Bowman maintains still that Oates inconsistently
applied the policy as “part of her program to deprive [Bowman] of earnings
whenever she can in retaliation for his protected activity in the prior case.” Doc. 42
at 29. To demonstrate the purported inconsistent application of the signup policy,
Bowman maintains that he once “took note that Ricky Lee was not working in a
‘post’ position during the time that [Lee] was working as the maintenance
supervisor during events in the Crossplex division.” Doc. 47 at 10. Although
Bowman is correct that the inconsistent application of a policy can be suggestive of
discrimination, see Morrison v. Booth, 763 F.2d 1366, 1374 (11th Cir. 1985), Lee
is not a proper comparator as he was in fact assigned the temporary role as
maintenance supervisor which required him to work events.
Doc. 47-1 at 9
(Bowman’s affidavit that “Faye Oates gave . . . Ricky Lee the job duty of
supervising the maintenance staff and maintenance needs for the Birmingham
Crossplex department. Faye Oates made the announcement [that] Ricky Lee was
supervising maintenance [during] one of the staff meetings in the summer of
2017.”). As stated previously, after Lee’s discharge, Oates reassigned Lee’s duties
27
to multiple employees, including Bowman. Bowman concedes that Oates never
formally assigned him the maintenance supervisor position and that she did not
mention that Bowman’s temporary maintenance duties included working during
events.
Accordingly, the purported inconsistent application between Lee and
Bowman does not render the City’s legitimate explanation that it was merely
enforcing the assignment policy implausible or inconsistent to the degree that a
reasonable fact-finder could find it unworthy of credence. Combs, 106 F.3d at
1543.
As to the next alleged example of an inconsistent application, Bowman
contends that the City allowed him to fill in as an events manager for Sandra
Brown without requiring that he utilize the events signup policy. As Bowman
notes, however, the events manager, Brown, specifically asked Bowman to
substitute in her place as a manager overseeing employee sign-in at events. See
doc. 36 at 45 (Brown’s deposition that “Q: Is it true that [Bowman has] worked in
place of you to supervise the sign-in/sign-out process at events held throughout the
Birmingham Crossplex Department? A: Yes, that’s true.”) and doc. 37-2 at 8
(Oates’ deposition that “Q: Do you have any knowledge of me filling in for the
signing supervisor, Sandra Brown? A. I do. You just reminded me of that. I know
that Ms. Brown will ask you to clock people in — event staff to clock them in and
clock them out when she is unable to do that duty.”). In that respect, Bowman was
28
the actual events manager that day in a role that required that he work at an event.
As such, his work as an events manager was outside the assignment policy which
only applies to employees who “work outside of their duties [during events]” and
must formally “sign up as an event worker.” Doc. 37-2 at 7-8. Accordingly, this
example fails to demonstrate that Oates inconsistently applied the assignment
policy. See Combs, 106 F.3d at 1543 (noting that a potential disagreement over an
employer’s decision does not, without more, create a basis to disbelieve an
employer’s explanation).
Finally, the denial of Bowman’s request a few weeks later to work on a
Saturday to oversee an electrical issue with a copier, doc. 42 at 25, also does not
prove retaliatory animus. Although Oates agrees that Bowman worked “with the
maintenance staff and the copier vendor to try to resolve that problem,” Oates
contends that she did not need Bowman outside his standard work schedule on this
issue because Bowman lacked electrical experience, that she had already assigned
an electrician for the event, and that two other employees with temporary
maintenance assignments were also scheduled to work the event. Doc. 37-2 at 1618. Bowman does not refute these contentions and has offered no evidence to
show that the two employees Oates references failed to sign up through the
assignment post policy or that it was unreasonable for Oates to limit the number of
employees overseeing the electrical issue. Ultimately, Bowman may only “survive
29
summary judgment . . . if there is sufficient evidence to demonstrate the existence
of a genuine issue of fact as to the truth of each of the employer’s proffered
reasons for its challenged action.” Combs, 106 F.3d at 1529 (emphasis added).
The failure to rebut Oates’ contentions dooms Bowman’s claim.
To summarize, Bowman concedes that Oates only assigned him some of the
duties of the maintenance role, that Oates told him to utilize the signup sheet if he
wanted to work in a role beyond his normally assigned duties during events, that he
never utilized the signup sheet, and that he told Oates he would no longer work any
events. Moreover, Bowman has not offered any evidence that Oates allowed other
similarly situated employees who did not utilize the signup sheet to work events. In
short, the record does not permit the inferential leap required to conclude that
Oates or the City, rather than Bowman’s own failure to utilize the post assignment
sheet, prevented Bowman from working at Crossplex events. Therefore, Bowman
has failed to present any evidence that the City’s “proffered reason is unworthy of
credence or . . . that [retaliation] more than likely motivated” its decision. Elrod v.
Sears, Roebuck & Co., 939 F.2d 1466, 1471 (11th Cir. 1991).
3. Overall Crossplex Manager Position and Cashier Role Assignment
Finally, Bowman claims that the City retaliated against him by denying him
an “overall” manager role and a cashier position. The City contends that it does
not have a so-called “Crossplex Event Manager” position. Docs. 33-5 at 3, 46-1 at
30
2 (Oates’ testimony that “[o]f the duties assigned [at Crossplex], I never created,
nor did I ever have any knowledge of a position characterized as an overall
manager position.”). As to the cashier role, the City contends that it initially
assigned Bowman the position at a NCAA event because it needed “all hands on
deck.” Doc. 37-2 at 19. Oates testified that the City asked employees “from all
over the City” with “all different kinds of backgrounds” to help for events “as big
as a national championship through the NCAA where [the Crossplex] was going to
have thousands of people in the building,” id. at 11, and that she assigned Bowman
to cashier duties due to his familiarity with handling money and the Ticket Biscuit
system, id. at 20. However, ultimately, the City rescinded the cashier assignment
due to a projected decline in sales and attendance rates at the NCAA event. Id.
Having met its burden of producing non-retaliatory reasons for these two
decisions, the burden shifts to Bowman to show pretext. Bowman has failed to do
so with respect to the “overall manager” position, as he does not refute the City’s
contention that it has no such position: “Q: But it’s your position that it’s
retaliation against you because [Oates is] not putting you in a role that you don’t
know whether or not it even exists? A. Yes, because she could have easily, when I
asked her about it, said, ‘Oh, no, it don’t exist.’ She just didn’t respond, which that
was curious in itself.” See doc. 33-4 at 18. Without more, Bowman has failed to
establish that the City’s proffered reason is pretextual.
31
Bowman’s claim for the cashier role assignment is also doomed by a lack of
actual evidence. Bowman does not even address the City’s contention that it
removed him from the schedule due to lower than projected attendance to the
NCAA championship. Bowman claims only that he believes that Oates preempted
a cashier manager from asking Bowman to play a role in the event. Doc. 33-4 at
20-21 (Bowman’s testimony that “[e]ven if [the cashier manager] would have or
would not have, I don’t know, but I think [Oates] preempted him.”).
This
contention does not meet the City’s articulated reason head on. See Trigo, 663
Fed. App’x at 873 (to demonstrate pretext, the employee “must meet [the
employer’s proffered reasons] head on and rebut it”).
Moreover, such
“unsupported speculation . . . does not meet a party’s burden of producing some
defense to a summary judgment motion.” Cordoba v. Dillard’s, Inc., 419 F.3d
1169 (11th Cir.2005) (finding that claims that are “entirely without foundation”
should not be presented as triable issues of fact). Therefore, summary judgment is
due on this, as well as the overall manager, claim.
V. CONCLUSION AND ORDER
Consistent with this opinion, the City’s motion to strike, doc. 41, is
GRANTED solely as to paragraphs 15 and 17 of Bowman’s November 2018
affidavit, and Bowman’s motion to strike, doc. 49, is DENIED. Therefore, the
32
court STRIKES paragraphs 15 and 17 and the Clerk is DIRECTED to seal
Bowman’s November 2018 Affidavit, docs. 36 and 41-1.
Bowman’s motion for summary judgment, doc. 35, is DENIED, and the
City’s motion, doc. 32, is GRANTED solely as to the retaliation claims related to
the threat of termination, overall Crossplex events manager role, maintenance
manager role, and cashier role assignment. Accordingly, these four claims are
DISMISSED WITH PREJUDICE.
The pretrial conference and trial will proceed on February 8, 2019 and
March 18, 2019 as scheduled on Bowman’s remaining claim related to the written
reprimand.
DONE the 7th day of February, 2019.
_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
33
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