Doxie v. Volunteers of America Southeast Inc et al
MEMORANDUM OPINION & ORDER granting 71 MOTION for Summary Judgment as to Doxie's racial harassment claim under Title VII and retaliation claim and denying motion in all other respects; Final Pretrial Conference (by telephone) set for 9/22/2014 08:00 AM before Judge Abdul K Kallon. Jury Trial set for 10/27/2014 09:00 AM in US Post Office & Courthouse, Decatur, AL before Judge Abdul K Kallon.. Signed by Judge Abdul K Kallon on 8/7/2014. (KAM, )
2014 Aug-07 PM 03:28
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
VOLUNTEERS OF AMERICA,
SOUTHEAST, INC., et al.,
Civil Action Number
MEMORANDUM OPINION AND ORDER
Tina Doxie, an African-American, claims that her former employers,
Volunteers of America, North Alabama, Inc. (“Volunteers North Alabama”), and
Volunteers of America, Southeast, Inc. (“Volunteers Southeast”) (collective,
“Defendants”), discriminated against her based on her race, retaliated against her
based on her complaints of racial discrimination, and subjected her to a racially
hostile environment, in violation of 42 U.S.C. § 1981 and Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Before the court is
Defendants’ motion for summary judgment, which is fully briefed. Docs. 71, 72,
91, & 92. For the reasons stated below, the motion is GRANTED as to Doxie’s
racial harassment claim under Title VII and retaliation claim, and DENIED in all
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Accordingly, this matter is set for a pretrial conference at 8 a.m. on
September 22, 2014, by telephone, and for trial at 9:00 a.m. on October 27,
2014, at the U.S. Courthouse in Decatur, Alabama. The attention of counsel is
directed to the attached PRE-TRIAL CONFERENCE instructions, which require
that counsel submit a proposed Pre-trial Order at least four business days in
advance of their conference. The parties are DIRECTED to initiate the call with
each other, then conference in the court by dialing (205) 278-1854.
I. SUMMARY JUDGMENT STANDARD OF REVIEW
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.” “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). 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).
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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.
The court must construe the evidence and all reasonable inferences arising from it
in the light most favorable to the non-moving party. Id. 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)).
II. FACTUAL BACKGROUND1
Defendants are non-profit organizations contracted by the Department of
Mental Health of Alabama to provide services to people with developmental and
intellectual disabilities in Lauderdale County, Alabama. Doc. 76-14 at 28.
Volunteers North Alabama hired Doxie as a House Manager on April 26, 2002,
and assigned her initially to House 16. Docs. 73-1 at 69; 73-3 at 3. Thereafter,
These are the “facts” for summary judgment purposes only and may not be the actual
facts. See Cox v. Adm’r U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th Cir.
1994). The court has gleaned these facts from the parties’ individual submissions of facts
claimed to be undisputed, their respective responses to those submissions, and the court’s own
examination of the evidentiary record. Finally, all reasonable doubts about the facts have been
resolved in favor of the nonmoving party. See Info. Sys. & Networks Corp. v. City of Atlanta, 281
F.3d 1220, 1224 (11th Cir. 2002).
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beginning on October 8, 2002, and until the end of her employment, Doxie worked
at Houses 26, 32, 33, 63, 69, 87, and 88. Docs. 73-1 at 49; 73-3 at 3.
Sometime in 2010 Volunteers Southeast reached an agreement to take over
Volunteers North Alabama’s operations. As a result, Doxie became a Volunteers
Southeast employee on January 1, 2011. Docs. 73-1 at 11; 73-2. Prior to joining
Volunteers Southeast, Doxie signed an employment agreement providing, in part,
“I acknowledge and agree that [Volunteers] Southeast has not assumed any
obligation [Volunteers North Alabama] may have owed to me before January 1,
2011.” Doc. 73-2 at 2 (emphasis in original). At the time of the transition, Doxie
worked at House 69 under the direct supervision of Pilar Smith. Doc. 73-1 at 25.
However, the transition proved chaotic and created confusion over supervisory
roles. See docs. 73-21 at 26; 73-17 at 17; & 90-1 at 65. The confusion escalated
when Smith left Volunteers Southeast within one month of the switch, and Chris
Noel became Doxie’s immediate supervisor,2 doc. 73-14 at 19.
The alleged harassment at issue spanned both employers. Allegedly, during
Doxie’s employment with Volunteers North Alabama, Teresa Stephenson, Sarah
Doxie contends that Nicole Jones became her immediate supervisor, doc. 91 at 7, but the
evidence she cites only states that Jones took over as Program Director, see doc. 73-1 at 25.
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and Carrie Rickard, and Amy Johnson made disparaging remarks about AfricanAmericans in Doxie’s presence almost daily. See doc. 90-16 at 5. For example,
while Doxie worked at House 16, Stephenson and Sarah Rickard “said that black
men . . . leave black women  because we was nasty, dumb, stupid, retarded and
worthless,” told another employee “that if she would ever get close to a n*****
man, they don’t know what they’ll do to her,” yelled racial epithets at an AfricanAmerican male whenever he came by, and Stephenson told Doxie that she “don’t
like blacks.” Docs. 73-1 at 44 & 47–48; 73-3 at 3. While Doxie worked at House
32, Carrie Rickard used the “N” word daily in Doxie’s presence. Doc. 73-1 at 49.
This sort of behavior continued until these individuals left Volunteers North
Alabama: Johnson in July 2009; Carrie Rickard in August 2009; Sarah Rickard in
November 2009; and Stephenson in March 2010. Doc. 90-16 at 7–8.
Although Doxie “did not hear the mean and hateful racial words and
language on a daily basis” after Stephenson left in March 2010, Doxie claims that
Nicole Jones, who took over Stephenson’s job as Program Director, also harassed
her. See docs. 90-16 at 8; 73-1 at 25. The alleged harassment consisted of the
following: (1) Jones talked down to the African-American staff while conducting
staff meetings at House 87, (2) the African-American staff feared Jones because
Jones “did not like black people and let her dislike for black people known,” and
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(3) Jones told Doxie that she “didn’t like black neighborhoods” while Doxie
worked at House 69. Doc. 73-1 at 53 & 83.
Doxie never filed a complaint about the alleged conduct while she worked
for Volunteers North Alabama.3 However, in January 2011, after she transitioned
to Volunteers Southeast, Doxie gave her immediate supervisor, Pilar Smith, a
four-page, handwritten letter “complaining about racial discrimination, retaliation
and a hostile environment” at Volunteers Southeast and Volunteers North
Alabama.4 Doc. 73-1 at 16. Doxie did not keep a copy of the letter, and the only
specifics she provided in her deposition is that she informed Smith that
Defendants would have discharged Doxie if she engaged in similar conduct as
And what did you say to [Smith] when you gave [the letter] to
Telling her about how I was being treated [with] racial
discrimination, that things that white people did that didn’t get
put on the administrative leave. That if I had done it, I would have
Volunteers North Alabama’s employee handbook provided that “[a]ny employee who
believes that the actions or words of a supervisor or fellow employee constitute unwelcome
harassment has a responsibility to report or complain as soon as possible to their supervisor
and/or to the Human Resource Department or CEO.” Doc. 73-10 at 38.
Volunteers Southeast’s policy required employees to “promptly report any incident of
harassment or any other violation of [the] EEO/Harassment Policy directly to [their] Supervisor
or [the] Human Resources Department . . . .” Doc. 73-11 at 10.
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been put on administrative leave like I was and fired. And talking
about Ms. Evelyn, how she came to work drunk every day, and I
was reporting her and nothing ever was done. And her overdosing
[a client] with medicine, and othing was ever done because she
was white and I was black.
Anything else you told her?
And how she would come to work late, and I would report
everything that she was doing to her and nothing ever was done.
But if I would have done it, I would have been done just like I am
now. Put on administrative leave, fired, without insurance . . . .
Did you tell Ms. Smith anything else?
No, no more than what I wrote on the paper and I talked to her
about how I felt like I was being treated different from white
Id. at 17 (alterations added). Doxie conveyed similar sentiments in early March
2011, when she told Valerie Acklin, a Licensed Practical Nurse, that English was
“getting away with stuff because she’s white,” that an African-American in the
same situation would have been discharged, and that Doxie was harassed by
Stephenson. Doc. 73-1 at 41–42.
In late March 2011, Volunteers Southeast received two anonymous
complaints alleging that Doxie “berated and yelled at” her co-workers, “fussed” at
English in a disparaging manner, threatened another co-worker, and yelled at
Baron Kindle and a client at House 69. See doc. 73-5. These complaints prompted
Kimberly O’Neal, an employee in the Human Resources Department, to launch an
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investigation that included interviewing Doxie and the employees working at
House 69 (Dennis Doxie (Doxie’s brother), Kindle, and Jim Norman) by telephone
on March 30, 2011.5 Docs. 73-15 at 46–47; 73-14 at 50. Although “there was no
confirmed evidence during these calls,” Norman, who initially denied the
allegations against Doxie, called O’Neal the next day, confirmed the allegations,
and faxed a written statement. Id. at 63–64 & 68. Apparently, Norman was too
nervous to disclose the bullying to O’Neal during the original phone call. Id. at 68.
On April 4, 2011, Cassandra Hall, Service Coordinator of Residential
Services, relayed to Doxie that Volunteers Southeast had decided to place Doxie
on administrative leave without pay. Docs. 73-1 at 9; 73-14 at 54. While on
administrative leave, Doxie sent O’Neal pictures from her phone of English
sleeping on the job. Doc. 73-1 at 35. After reviewing O’Neal’s findings, DeAnna
Ferguson, Vice President of Services, decided to discharge Doxie for bullying and
harassing the staff at House 69. Doc. 73-14 at 54. Hall informed Doxie of the
decision on April 14, 2011, and Doxie received a letter informing her of her
discharge for a violation of employee conduct. Doc. 73-1 at 11 & 14.
O’Neal could not interview English, doc. 73-15 at 47, because around the same time
Doxie complained to Acklin, someone reported English’s mental health problems to DeAnna
Ferguson, Vice President of Services, who instructed English to visit a physician, docs. 73-14 at
58; 73-16 at 26. Thereafter, English took FMLA leave and never returned. Doc. 73-15 at 47.
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Initially, the court must address Doxie’s assertion that Volunteers Southeast
is the same legal entity as, or the legal successor to, Volunteers North Alabama
because Doxie performed the same duties for Volunteers Southeast, Volunteers
Southeast temporarily assumed Volunteers North Alabama’s contracts, people
commonly referred to the two companies by their common “Volunteers of
America” name, O’Neal answered “correct” when Doxie’s attorney asked if
O’Neal first met Ferguson “[i]n regard to the merger,” a Volunteers Southeast
manager once referred to the switch as a “merger” on an employee’s performance
review,6 and people confused the corporate names following the switch. Docs. 91
at 4 n.2; 73-1 at 23, 25–27, 30–31, 67, & 76; 73-14 at 22 & 74; 73-15 at 34 & 43;
73-16 at 35–36; & 73-19 at 9–10 & 25. Defendants contend that the corporations
are separate entities that operated in different geographic areas until Volunteers
Southeast took over Volunteers North Alabama’s operations on January 1, 2011.
See docs. 73-14 at 6–7; 73-3 at 3–4. Although the evidence supports Defendants’
contention that the two companies are separate and distinct legal entities, the court
cannot side with Defendants at this juncture because the parties failed to properly
The employee immediately added, “Well, it wasn’t actually a merger. He used that word
as kind of a generic term, but that means the pulling together of North Alabama and Southeast.”
Doc. 73-19 at 25.
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address the elements of successor liability.7 Because “[a] corporation, which is
found to be the successor of another corporation, can be held liable for the
predecessor’s unfair labor practices, but only if the successor knew of the labor
law violations at the time of the transfer of the business,” Knox v. Brundidge Shirt
Corp., 942 F. Supp. 522, 527 (M.D. Ala., 1996) (Title VII and § 1981 claims), the
court will defer reaching a determination on this issue until later, if necessary. For
purposes of this opinion, the court will assume that Volunteers Southeast is the
legal successor to Volunteers North Alabama.
Turning to the substantive claims, Doxie maintains that she endured a
racially hostile environment, and that discriminatory and retaliatory animus
motivated her administrative leave and discharge. Because Title VII and § 1981
claims “have the same requirements of proof and use the same analytical
framework, [the court] shall explicitly address [Doxie’s] Title VII claim[s] with
the understanding that the analysis applies to the § 1981 claim[s] as well.”
Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). In that
respect, the court will address the hostile environment claim first, and, in section
Defendants simply state that “Volunteers Southeast is not the legal successor to
Volunteers North Alabama,” doc. 92 at 3 (emphasis in original), and Doxie cites to cases
discussing successor liability without providing any substantive argument for why it applies in
this case, see doc. 91 at 4–5 n.2.
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B, the discrimination and retaliation claims.
Defendants raise multiple arguments in favor of their motion on the race
harassment claim: (1) that Doxie cannot establish a prima facie case; (2) that the
claim is untimely; (3) that Doxie only raised discrimination and retaliation claims
in her complaint and deposition testimony; (4) that Doxie waived her claims
against Volunteers Southeast; and (5) Defendants are entitled to a Faragher
defense.8 See doc. 72 at 34–44. The court addresses these contentions below.
Doxie can establish a prima facie case.
To establish a hostile environment claim, Doxie must show that:
(1) [s]he belongs to a protected group; (2) [s]he was subjected to
unwelcome harassment; (3) the harassment was based on [her]
membership in the protected group; (4) it was severe or pervasive
enough to alter the terms and conditions of employment and create a
hostile or abusive working environment; and (5) the employer is
responsible for that environment under a theory of either vicarious or
Jones v. UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012) (quotation
marks omitted). Defendants contend that Doxie cannot establish that the
Because the court determines that only Doxie’s Title VII hostile environment claim is
time barred, it need not address Defendants’ arguments that Doxie has no damages (which is
premised on Chandler’s claims being time barred) or their other Title VII specific arguments (i.e.,
that Doxie’s allegations in this lawsuit exceed the scope of her EEOC charge).
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harassment she endured was based on her race, or that it was sufficiently severe or
pervasive. Doc. 72 at 37–41. For the reasons stated below, these two contentions
The harassment was based on Doxie’s race.
Typically, “only conduct that is ‘based on’ a protected category, such as
race, may be considered in a hostile environment analysis. ‘Innocuous statements
or conduct, or boorish ones that do not relate to the [race] of the actor or the
offended party (the plaintiff), are not counted.’” Jones, 683 F.3d at 1297 (quoting
Gupta v. Florida Bd. of Regents, 212 F.3d 571, 583 (11th Cir. 2000)) (internal
citations omitted). Defendants argue that “[t]he racial slurs Doxie asserts . . . were
not specifically directed at Doxie.” Doc. 72 at 39. However, this is inconsequential
because the alleged comments by Stephenson, Jones, and the Rickards
unequivocally related to African-Americans. See doc. 73-1 at 44, 47, 49, 53, & 83.
To the extent that Doxie can, in fact, prove that these individuals made the alleged
derogatory comments in her presence, see Adams v. Austal, U.S.A., L.L.C., --- F.3d
---, 2014 WL 2726171, *6 (11th Cir. 2014) (“a district court should not consider
evidence of racial harassment of other employees—evidence that the plaintiff did
not know about—in evaluating the objective component of a claim of a hostile
work environment”), the fact that the alleged comments were not specifically
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about Doxie is immaterial to the analysis of whether the alleged harassment Doxie
endured was based on her race.
The harassment was sufficiently severe or pervasive.
Next, Doxie must show that the harassment was severe or pervasive enough
to alter the terms and conditions of employment and create a hostile or abusive
working environment. This determination includes both a subjective and objective
component. Jones, 683 F.3d at 1299. “The burden is on [Doxie] to demonstrate
that [s]he perceived, and that a reasonable person would perceive, the working
environment to be hostile or abusive.” Id. At summary judgment, the court must
accept that Doxie subjectively perceived that the harassment rose to this level. Id.
In determining whether a reasonable person would perceive the working
environment as hostile or abusive, the court must look at the totality of
circumstances and consider, inter alia: “(1) the frequency of the conduct; (2) the
severity of the conduct; (3) whether the conduct is physically threatening or
humiliating, or a mere offensive utterance; and (4) whether the conduct
unreasonably interferes with the employee’s job performance.” Adams, 2014 WL
2726171 at *7 (quoting Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir.
1999)) (quotation marks omitted). Conduct is objectively severe when the
workplace is permeated with intimidation, ridicule, and insult. Miller v. Kenworth
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of Dothan, Inc., 277 F.3d 1269, 1276–77 (11th Cir. 2002).
Up until March 2010, Doxie allegedly endured racial slurs almost every day
from Stephenson and the Rickards. Docs. 90-16 at 5 & 7–8; 73-1 at 44 & 47–49;
& 73-3 at 3. First, this daily conduct for almost eight years was sufficiently
frequent to create a hostile environment. See Johnson v. Booker T. Washington
Broad Serv., Inc., 234 F.3d 501, 508 (11th Cir. 2000) (“fifteen separate instances
of harassment over the course of four months” was sufficiently frequent). Second,
the perpetrators used the slurs in a disparaging, intimidating manner. See doc. 73-1
at 44 (Stephenson would tell another employee in Doxie’s presence “that if she
would ever get close to a n***** man, they don’t know what they’ll do to her.”),
& 48 (“when Amy’s baby’s daddy would come up to the Day Hab, [Stephenson
and Sarah Rickard] would holler at him and call him n*****”); see also Nichols v.
Volunteers of America, North Alabama, Inc., 740 Fed. Appx. 757, 760–61 (11th
Cir. April 18, 2012) (identical conduct found to be severe or pervasive). Third,
many of the comments were humiliating. See doc. 73-1 at 44 (Stephenson and
Sarah Rickard “said that black men . . . leave black women  because we was
nasty, dumb, stupid, retarded and worthless.”). Finally, even though there is little
evidence that these comments interfered with Doxie’s job performance,
“harassment need not be shown to be so extreme that it produces tangible effects
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on job performance in order to be actionable.” Miller v. Kenworth of Dothan, Inc.,
277 F.3d 1269, 1277 (11th Cir. 2002). In light of the frequency, severity, and
humiliating nature of the conduct at issue, a jury could find that Doxie endured a
racially hostile environment up until Stephenson’s departure in March 2010.
The court makes a different determination regarding the time frame between
March 2010, and Doxie’s discharge in April 2011. Doxie makes vague allegations
that Jones, Stephenson’s replacement as Program Director, “did not like black
people and let her dislike for black people be known,” and that Jones talked down
to African-Americans, but the only specific incident Doxie identifies is when
Jones told Doxie that she disliked predominantly African-American
neighborhoods. Doc. 73-1 at 53 & 83. Further, Doxie admits that she “did not hear
the mean and hateful racial words and language on a daily basis” after March
2010. Doc. 90-16 at 8. As described to this court, Jones’ conduct falls significantly
short of the level necessary to sustain a racial harassment claim. Indeed, at worst,
the alleged conduct by Jones amounts to the offhand comments and isolated
incidents that courts have found do not establish a hostile environment. See, e.g.,
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998); Harris v.
Forklift Systems, Inc., 510 U.S. 17, 21–22 (1993). Accordingly, the time frame for
Doxie’s hostile environment claim extends only until March 2010.
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Doxie’s Title VII claim is untimely.
Defendants contend that Doxie’s hostile environment claim is
administratively barred on timeliness grounds under Title VII, and falls outside the
statute of limitations for § 1981. Doc. 72 at 36; see 42 U.S.C. § 2000e-5(e)(1)
(plaintiff has 180 days to file an EEOC charges); Baker v. Birmingham Bd. of
Educ., 531 F.3d 1336, 1337 (11th Cir. 2008) (four year statute of limitations for §
1981 claims). Because the purported hostile environment lasted until March 2010,
see supra Part III.A.1.ii, Doxie must have submitted an EEOC charge before
October 2010 to maintain her Title VII claim, and she must have filed this action
before April 2014 to maintain her § 1981 claim. Here, Doxie’s Title VII hostile
environment claim is untimely because she filed her EEOC charge in September
2011, well outside the 180 day period. However, Doxie can proceed with her §
1981 hostile environment claim because she filed her complaint within the four
year statute of limitations.
Doxie’s complaint and deposition testimony do not preclude her §
1981 hostile environment claim.
Defendants next contend that Doxie cannot maintain a claim for hostile
environment because she only included generalized allegations in her complaint,
and she later abandoned her hostile environment claim during her deposition. Doc.
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72 at 34–35. The court disagrees with both of these assertions. First, although
Doxie was not obligated to “allege ‘specific facts’ beyond those necessary to state
[her] claim and the grounds showing entitlement to relief,” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007), Doxie’s complaint includes sufficient
allegations to correctly plead a hostile environment claim. Among other things,
Doxie alleges that “almost every day, Stephenson, S. Rickard, Carrie Rickard,
Amy Johnson, and Melissa Castle, in Doxie’s presence, talked about how they
disliked and hated black men and how black men went to white women because
all black women were nasty, dumb, stupid, retarded, and worthless, and that they
hated all relationships between black men and white women,” that “all black
people are good for is to clean up poop,” and that these employees also voiced
strong displeasure against interracial relationships. Doc. 26 at 7. These allegations
outlined the facts “necessary to state [a hostile environment] claim and the
grounds showing entitlement to relief.” Twombly, 550 U.S. at 570.
Second, Doxie clarified several times in her testimony that she is alleging a
racially hostile environment claim. See, e.g., doc. 73-1 at 74 (Doxie asserts that the
EEOC charge “should [allege that I was harassed and subjected to a racially
hostile environment], shouldn’t it? Ain’t that what I’m filing for? I mean, that’s
my complaints.”); see also id. at 80, 87, 88, & 90. Moreover, Defendants
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mischaracterize Doxie’s testimony. For example, even though Doxie only
answered negatively when asked if there were any additional allegations regarding
her retaliation claim, see id. at 71–72, Defendants assert now that Doxie was
referring to her entire case, see doc. 72 at 34–35. The evidence simply does not
support Defendants’ contention that Doxie abandoned her hostile environment
Doxie did not waive her claims against Volunteers Southeast.
Defendants next contend that Doxie waived her hostile environment claim
against Volunteers Southeast because she signed an employment agreement
stating “that Volunteers Southeast ‘has not assumed any obligation [Volunteers
North Alabama] may have owed to [Doxie] before January 1, 2011.’” Doc. 72 at
37 (quoting doc. 73-2 at 2) (some alterations added). Doxie asserts that
Defendants’ contention “is ungrounded in law, against public policy, and wholly
frivolous.” Doc. 91 at 17–18 n.4. Indeed, Defendants cite no law in support of
their waiver argument. As previously mentioned, the court will consider
Volunteers Southeast the legal successor to Volunteers North Alabama for
purposes of this opinion. As a result, the court must closely scrutinize the
employment agreement to determine whether Doxie “knowingly and voluntarily”
consented to the release of her § 1981 rights. See Beadle v. City of Tampa, 42 F.3d
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633, 635 (11th Cir. 1995). However, neither party addresses the factors this court
must consider in making such a determination.9 Accordingly, the court will defer
its determination of whether Doxie waived her claims against Volunteers
Southeast for actions occurring while Volunteers North Alabama employed her.
Defendants are not entitled to a Faragher defense at summary
Finally, Defendants contend that they are entitled to a Faragher defense
because they can prove “(a) that [Volunteers Southeast and Volunteers North
Alabama] exercised reasonable care to prevent and correct promptly any [racially]
harassing behavior, and (b) that [Doxie] unreasonably failed to take advantage of
any preventive or corrective opportunities provided by [Volunteers Southeast and
Volunteers North Alabama] or to avoid harm otherwise.” Faragher v. City of Boca
Raton, 524 U.S. 775, 778 (1998). Each Defendant has a policy requiring
employees to report or complain about harassment as soon as possible to their
supervisor or to the Human Resource Department. See docs. 73-10 at 38; 73-11 at
10. However, regarding Volunteers North Alabama, the Eleventh Circuit found in
“In determining whether a release was knowingly and voluntarily entered, the factors that
guide a court include: the plaintiff’s education and business experience; the amount of time the
plaintiff considered the agreement before signing it; the clarity of the agreement; the plaintiff’s
opportunity to consult with an attorney; the employer’s encouragement or discouragement of
consultation with an attorney; and the consideration given in exchange for the waiver when
compared with the benefits to which the employee was already entitled.” Beadle, 42 F.3d at 635.
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a related case that “numerous . . . employees complained to . . . human resources
about the discrimination and harassment multiple times, and at no point did
[Volunteers North Alabama] conduct an investigation.” King v. Volunteers of
America, North Alabama, Inc., 502 Fed. Appx. 823, 830 (11th Cir. Dec. 19, 2012).
Similarly, in this case, April Chandler and Sonja King, two of Doxie’s co-workers,
purportedly complained about Stephenson’s harassment when it originally
occurred, but Volunteers North Alabama ignored their complaints. See docs. 90-8
at 4–6; 90-5 at 8–10. Accordingly, even absent a complaint by Doxie, “a
reasonable jury could conclude that [Volunteers North Alabama] did not have an
adequate system in place to prevent and correct hostile behavior.” King, 502 Fed.
Appx. at 830.
With respect to Volunteers Southeast, Doxie notified her immediate
supervisor, Smith, about the purported harassment in January 2011. See doc. 73-1
at 16. However, when pressed about the content of her complaint, Doxie testified
that she complained about a co-worker’s (English) conduct and, more specifically,
her belief that Volunteers Southeast would discipline Doxie if she engaged in
similar conduct as English. Id. at 17. Critically, at no point did Doxie claim she
told Smith about any specific conduct directed at Doxie that contributed to the
alleged hostile environment, especially the alleged conduct by Nicole Jones. Id. at
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16–17. Moreover, although Doxie notified Acklin in March 2011 about
Stephenson’s conduct, Acklin was not Doxie’s supervisor,10 see doc. 73-18 at 89,
and, given that Stephenson left Volunteers North Alabama in March 2010, doc.
90-16 at 7–8, it is unclear what Doxie hoped Acklin or Volunteers Southeast
would do about Stephenson. The rest of the complaint to Acklin centered also on
the alleged preferential treatment of English and Doxie’s belief that Volunteers
Southeast would discharge Doxie if she engaged in similar conduct as English.
Doc. 73-1 at 41–42. While Doxie is free to formulate this belief, facts, not
speculation or conjecture, are necessary to establish a claim. See Myers v.
Bowman, 713 F.3d 1319, 1327 (11th Cir. 2013). Where, as here, Doxie does not
allege that she told Volunteers Southeast about any alleged racial harassment
related to her—especially the alleged conduct by Nicole Jones which is the only
alleged harassing conduct that occurred after the switch to Volunteers
Southeast—a jury cannot conclude that Doxie reasonably took advantage of any
preventive or corrective opportunities that Volunteers Southeast provided.
Therefore, as it relates to conduct directly attributable to it, including any alleged
conduct by Nicole Jones occurring after December 30, 2010, Volunteers Southeast
Doxie contends that Acklin was a supervisor, doc. 91 at 35, but the evidence she
cites—Chandler’s deposition testimony—only states that Acklin attended supervisory meetings,
but “[s]he didn’t supervise anyone,” doc. 73-18 at 89.
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is entitled to the Faragher defense and summary judgment to these claims.
However, because, as previously noted, Volunteers Southeast may be liable for
Volunteers North Alabama’s conduct, the court will not grant Volunteers
Southeast summary judgment on a Faragher defense at this juncture for conduct
occurring prior to December 30, 2010, because Volunteers Southeast’s liability, if
any, would be based on successor liability for Volunteers North Alabama’s
purported failure to effectively address the alleged conduct.
Discrimination and Retaliation
Doxie contends also that Defendants discriminated against her based on her
race and retaliated against her by placing her on administrative leave and
subsequently discharging her. See doc. 91. Because Doxie is relying exclusively
on circumstantial evidence, the burden of proof is ordinarily governed by the
McDonnell Douglas framework, see Standard, 161 F.3d at 1331 (discrimination);
Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001)
(retaliation), which first “requires the plaintiff to create an inference of
discrimination [or retaliation] through her prima facie case,” Springer v.
Convergys Customer Management Group, Inc., 509 F.3d 1344, 1347 (11th Cir.
2007) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).
Once a plaintiff establishes a prima facie case, the burden shifts to the employer to
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articulate a legitimate, non-discriminatory or non-retaliatory reason for its actions.
McDonnell Douglas, 411 U.S. at 802; Tex. Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 253 (1981). If the employer meets this burden, the plaintiff must show
that the proffered reasons were pretextual. St. Mary’s Honor Center v. Hicks, 509
U.S. 502, 511 (1993).
“To establish a prima facie case for disparate treatment in a race
discrimination case, the plaintiff must show that: (1) she is a member of a
protected class; (2) she was subjected to an adverse employment action; (3) her
employer treated similarly situated employees outside of her protected class more
favorably than she was treated; and (4) she was qualified to do the job.” BurkeFowler v. Orange County, Fla., 447 F.3d 1319, 1323 (11th Cir. 2006). Defendants
challenge only the third element, contending that “Defendants did not treat
similarly situated employees outside Doxie’s classification more favorably than
Doxie.” Doc. 72 at 33.
“To make a comparison of the plaintiff’s treatment to that of non-minority
employees, the plaintiff must show that [s]he and the employees are similarly
situated in all relevant respects.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.
1997) (citations omitted). If this is not the case, “the different application of
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workplace rules does not constitute illegal discrimination.” Lathem v. Dep’t of
Children & Youth Servs., 172 F.3d 786, 793 (11th Cir. 1999) (citing Nix v. WLCY
Radio/Rahall Commc’ns, 738 F.2d 1181, 1186 (11th Cir. 1984)). In order to be
considered “similarly situated,” the compared employees must have been
“involved in or accused of the same or similar conduct,” yet “disciplined in
different ways” for that conduct. Holifield, 115 F.3d at 1562 (citations omitted).
In this case, Doxie alleges that Defendants discriminated against her by
placing her on administrative leave and discharging her. For her comparator,
Doxie cites to Nicole Jones, whom Doxie alleges Defendants never disciplined
even though Jones purportedly bullied Chandler by jerking papers out of
Chandler’s hands during a meeting, docs. 73-18 at 38 & 65, and demeaned and
belittled African-American employees by talking “ugly and angry and just mean”
to them, doc. 73-1 at 53. Although Doxie has presented no evidence that anyone
accused Jones of bullying a client (which is one of the allegations against Doxie),
the court need not focus on this difference between Doxie and Jones because
Ferguson is clear that Doxie “was terminated for bullying and harassing the staff at
[House 69].” Doc. 73-14 at 54 & 65(Doxie was discharged for “[t]alking
derogatory to the staff. Telling them that they weren’t doing their jobs. It was not
her place. If she had problems with the staff and their performance, she should’ve
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went to her supervisor and let the supervisor deal with it.”) (emphasis added).
Accordingly, viewing the evidence in the light most favorable to Doxie, the court
finds that Doxie has identified an “appropriate comparator” to establish her prima
In light of Doxie’s prima facie case, the burden shifts to Defendants to
articulate a non-discriminatory reason. Defendants contend that Volunteers
Southeast placed Doxie on administrative leave and discharged her because “she
was bullying co-workers and a client.”11 Doc. 72 at 31. This reason initially
satisfies Defendants’ burden under the McDonnell Douglas framework because
Defendants “need only produce evidence that could allow a rational fact finder to
conclude that [Doxie’s] discharge was not made for a discriminatory reason.”
Standard, 161 F.3d at 1331. “In light of this, [Doxie] must now create a genuine
issue of material fact as to whether the reasons advanced are pretextual. In other
words, [Doxie] must provide sufficient evidence to allow a reasonable fact finder
to conclude that the proffered reasons were not actually the motivation for h[er]
discharge.” Id. at 1332; see Combs v. Plantation Patterns, 106 F.3d 1519, 1538
(11th Cir. 1997) (internal quotation marks and citations omitted) (“The district
Again, the decision maker is clear that she discharged Doxie for misconduct directed at
the staff. Doc. 73-14 at 54 & 65.
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court must evaluate whether [Doxie] has demonstrated such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in [Defendants’]
proffered legitimate reasons for its action that a reasonable factfinder could find
them unworthy of credence.”).
Here, the circumstances surrounding Doxie’s discharge are suspicious, at
best. For example, the original complaints about Doxie’s conduct were
anonymous, and could have easily been fabricated. Indeed, O’Neal’s initial
investigation failed to substantiate the allegations. See doc. 73-15 at 63–64. It was
only a day later that Norman changed his story and confirmed the allegations
against Doxie. Moreover, Acklin, the nurse Doxie worked with on a daily basis,
was surprised to learn that Volunteers Southeast discharged Doxie for bullying.
Doc. 73-17 at 16. While Acklin may simply not have been privy to the bullying
complaints, given that only Norman confirmed the allegations (albeit a day later),
and there is no evidence that Doxie bullied co-workers prior to March 2011, see
doc. 73-14 at 76, there is enough here for a jury—if it is so inclined—to find the
articulated reason for Doxie’s discharge pretextual, see Jackson v. Ala. State
Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005). Accordingly, Defendants’
motion on the discrimination claim is due to be denied.
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Doxie alleges that Defendants retaliated against her by placing her on
administrative leave and discharging her. To make a prima facie case of
retaliation, Doxie “must present evidence that: (1) [s]he engaged in statutorily
protected conduct; (2) [s]he was adversely affected by an employment decision;
and (3) there was a causal connection between the statutorily protected conduct
and the adverse employment decision.” Drago v. Jenne, 453 F.3d 1301, 1307
(11th Cir. 2006). Defendants challenge the protected activity and the causal
Doxie engaged in statutorily protected conduct.
To demonstrate that she engaged in a protected activity under the opposition
clause,12 Doxie “must show that she ‘had a good faith, reasonable belief that the
employer was engaged in unlawful employment practices.’” Weeks v. Harden Mfg.
Corp., 291 F.3d 1307, 1312 (11th Cir. 2002) (quoting Little v. United Tech.,
Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir. 1997)). “It . . . is not enough
for a plaintiff to allege that [her] belief in this regard was honest and bona fide; the
“Title VII’s retaliation provisions do protect certain kinds of activity. Under the
opposition clause, an employer may not retaliate against an employee because the employee ‘has
opposed any practice made an unlawful employment practice by this subchapter.’” E.E.O.C. v.
Total System Services, Inc., 221 F.3d 1171, 1174 (11th Cir. 2000) (quoting 42 U.S.C. § 2000e–3
Page 27 of 32
allegations and record must also indicate that the belief, though perhaps mistaken,
was objectively reasonable.” Little, 103 F.3d at 960. Here, when Doxie
complained to Acklin in March 2011 about the harassment she endured from
Stephenson, she had a reasonable basis to believe Stephenson subjected her to a
hostile environment up until Stephenson left Volunteers North Alabama in March
2010. See supra Part III.A.1. Therefore, the court finds that Doxie engaged in
statutorily protected conduct in March 2011.13
There is no causal connection between Doxie’s protected
complaint and the adverse actions.
Generally, a plaintiff can establish the causation prong by “prov[ing] that
the protected activity and the negative employment action are not completely
unrelated.” Meeks v. Computer Assocs., 15 F.3d 1013, 1021 (11th Cir. 1994)
(internal citation and quotation mark omitted). This is satisfied when the plaintiff
“provides sufficient evidence that the decision-maker became aware of the
The court will assume also that Doxie engaged in protected activity in January, even
though Doxie’s testimony belies this contention. Again, Doxie’s January 2011 complaints to
Smith only concerned English’s poor performance, rather than any purported racial harassment
directed at Doxie. See doc. 73-1 at 17. As the court noted previously, Doxie’s belief that
Volunteers Southeast would have discharged her if she had engaged in the same misconduct as
English is “based on speculation and conjecture” and, thus, “is not reasonable.” Blackston v.
Shook & Fletcher Insulation Co., 764 F.2d 1480, 1482 (11th Cir. 1985). Moreover, although
Doxie testified that she complained about a hostile environment to Smith, doc. 73-1 at 16, when
pressed for details, Doxie only mentioned English’s conduct, id. at 17. Further, even assuming
Doxie believed that English’s conduct created a hostile environment, the belief is unreasonable
because English’s conduct—arriving to work drunk and overdosing a client—was not based on
Doxie’s race. See Jones, 683 F.3d at 1297.
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protected conduct, and that there was close temporal proximity between this
awareness and the adverse employment action.” Farley v. Nationwide Mut. Ins.
Co., 197 F.3d 1322, 1337 (11th Cir. 1999). Unfortunately, Doxie has presented no
evidence that Ferguson or O’Neal knew about Doxie’s complaints to Acklin or
Smith. See, e.g., doc. 73-1 at 18 (Doxie never “call[ed] HR to inquire about
whether or not they had received” her letter “because [Smith] said she was going
to take care of it.”), & 41–42 (not sure whether Acklin shared her complaints with
O’Neal because Doxie “didn’t check up on it.”). Indeed, Ferguson stated that she
“was never made aware of any complaints by Tina Doxie to . . . Pilar Smith or
Valerie Acklin.” Doc. 73-3 at 4. Instead, Doxie asks the court to deny summary
judgment because a jury could find that “Ferguson and Volunteers [Southeast]
learned about Doxie’s complaints, investigated English as a result, and only now
are feigning ignorance about the source of those complaints because of fear of
consequences in this litigation.” Doc. 91 at 22. However, while the court must
view the facts in the light most favorable to Doxie, drawing the inference Doxie
wants would require the court to speculate that whoever reported English’s mental
condition to Ferguson also reported Doxie’s complaints about a hostile
environment. Such a finding would be unreasonable. See Blackston, 764 F.2d at
1482. Further, the court cannot make such an inference based on Doxie’s
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complaints to Acklin because even Doxie admits that Ferguson knew about
English’s mental condition prior to Doxie’s complaints. Doc. 91 at 9 (citing doc.
73-14 at 59) (“In February 2011, Ferguson knew that  English was having
confusion, had gotten confused while driving, and had gotten lost.”). Accordingly,
there is no causal connection between Doxie’s protected activity and the adverse
employment action, and Defendants’ motion is due to be granted on Doxie’s
retaliation claim. See Krutzig v. Pulte Home Corp., 602 F.3d 1231 (11th Cir. 2010)
(no causal connection where “[t]here  is no evidence in the record to support a
finding that [the decision makers] knew of any [protected activity] at the time the
decision was made to terminate [the plaintiff’s] employment”).
For the aforementioned reasons, Defendants’ motion for summary judgment
is GRANTED as it relates to Doxie’s retaliation claim and Title VII hostile
environment claim. The motion is DENIED in all other respects.
DONE the 7th day of August, 2014.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
HON. ABDUL K. KALLON, PRESIDING
This case is set for a pre-trial hearing pursuant to Rule 16 of the Federal
Rules of Civil Procedure. A conference-type hearing will be held by telephone at
the time indicated.
The hearing will address all matters provided in Rule 16, including the
limitation of issues requiring trial, rulings on pleading motions, and settlement
Counsel attending the conference are expected to be well-informed about
the factual and legal issues of the case, and to have authority to enter appropriate
stipulations and participate in settlement discussions. Counsel appearing at the
conference will be required to proceed at trial notwithstanding the naming of
others as designated trial counsel.
Promptly upon receipt of this notice, plaintiff’s counsel is to initiate
discussions with other counsel aimed at ascertaining which basic facts are not in
dispute, at clarifying the parties’ contentions (for example, just what is denied
under a “general denial”) and at negotiating workable procedures and deadlines
for remaining discovery matters. At least four (4) business days in advance of the
conference, plaintiff’s counsel is to submit to chambers (via email at
email@example.com) a proposed Pre-trial Order in WordPerfect
format, furnishing other counsel with a copy. It is anticipated that in most cases
the proposed order, with only minor insertions and changes, could be adopted by
the court and signed at the close of the hearing.
A sample of a proposed Pre-trial Order is available on the Chamber web site
(www.alnd.uscourts.gov/Kallon/Kallonpage) to illustrate the format preferred by
the court and also to provide additional guidance and instructions. Each order
must, of course, be tailored to fit the circumstances of the individual case.
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Counsel drafting this proposed order should consider the utility this
document will provide for the litigants, the jury, and the court alike. The court
anticipates using the pretrial order to (1) identify and narrow the legal and factual
issues remaining for trial, and (2) provide jurors with the legal and factual context
of the dispute. This order should not revisit at length arguments made in previous
filings with the court, nor should it serve as another venue for adversarial
posturing. Pretrial orders should be simple, short, and informative.
IN ANY CASE WHERE COUNSEL HAVE ANNOUNCED
SETTLEMENT TO THE COURT, A CONSENT JUDGMENT IN
SATISFACTORY FORM MUST BE PRESENTED TO THE COURT PRIOR TO
THE SCHEDULED TRIAL DATE; OTHERWISE, THE CASE WILL BE
DISMISSED WITH PREJUDICE.
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