Gentry v. Russellville, Alabama, City of
Filing
54
MEMORANDUM OPINION AND ORDER that the defendant's motion for summary judgment in each case is GRANTED as more fully set out in order. Signed by Judge Liles C Burke on 8/29/2019. Associated Cases: 3:16-cv-01466-LCB, 3:17-cv-01127-LCB(AHI)
FILED
2019 Aug-29 PM 04:27
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
CHELSEA GENTRY,
Plaintiff,
vs.
THE CITY OF RUSSELLVILLE,
ALABAMA,
Defendant.
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Case No. 3:16-cv-1466-LCB
MEMORANDUM OPINION AND ORDER
Plaintiff Chelsea Gentry alleges discrimination and retaliation under Title
VII, 42 U.S.C. § 2000e, and under 42 U.S.C. § 1983, against Defendant City of
Russellville, Alabama.
01127).
(Doc. 1, No. 3:16-cv-01466 and Doc. 1, No. 3:17-cv-
Plaintiff also asserts a wage and hour claim under the Fair Labor
Standards Act (FLSA), 29 U.S.C. § 207. (Doc. 1, No. 3:17-cv-01127). This
matter is before the Court on Defendant’s motion for summary judgment. (Doc.
32). For the reasons set forth below, the Court shall grant Defendant’s motion.
I.
STANDARD FOR MOTION FOR SUMMARY JUDGMENT
“The court shall grant summary judgment 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(a). To demonstrate that there is a genuine
1
dispute as to a material fact that precludes summary judgment, a party opposing a
motion for summary judgment must cite “to particular parts of materials in the
record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ.
P. 56(c)(1)(A).
When considering a defendant’s motion for summary judgment, a district
court must view the evidence in the record and draw reasonable inferences from
the evidence in the light most favorable to the plaintiff. Asalde v. First Class
Parking Sys. LLC, 898 F.3d 1136, 1138 (11th Cir. 2018). Accordingly, the Court
presents the facts in this opinion in the light most favorable to Plaintiff. See also
Feliciano v. City of Miami Beach, 707 F.3d 1244, 1252 (11th Cir. 2013) (“[W]hen
conflicts arise between the facts evidenced by the parties, [courts] must credit the
nonmoving party’s version.”). “The court need consider only the cited materials,
but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).
II.
STATEMENT OF FACTS
Plaintiff began her employment with the Russellville Police Department
(RPD) in December 2011, at the age of 21. (Doc. 28-1 at 12). Plaintiff has a
bachelor’s degree in criminal justice. (Id. at 6). She attended the police academy
in January 2012. (Id. at 12).
2
Plaintiff worked as a police officer during the first three years of her
employment. (Id. at 12, 17). Between October 2012 to September 2013, the RPD
disciplined Plaintiff due to some problems, but on December 2, 2014, the RPD
gave Plaintiff a good annual review. (Doc. 28-1 at 70-71; Doc. 28-4 at 11; Doc.
28-5 at 11-12; Doc. 39-13).
In the summer of 2015, Defendant’s Civil Service Board (CSB) posted a
sergeant position at the RPD. (Doc. 28-1 at 17; Doc. 28-4 at 6). The RPD
instructed officers to sign their name to a list if they were interested in applying for
the position. (Doc. 28-4 at 6). Plaintiff was the only officer who signed the list.
(Doc. 28-1 at 18). Despite reservations based on her prior work history, Chief
Hargett recommended Plaintiff to the CSB for promotion. (Doc. 28-4 at 6, 10-11).
In August 2015, the CSB promoted Plaintiff to sergeant and gave her a pay raise.
(Doc. 39-65; Doc. 28-7, ¶ 4).
The CSB has a policy that newly promoted
employees are placed on a six-month probation. (Doc. 28-1 at 31-32, 72; Doc. 284 at 13; Doc. 28-5 at 22-23). 1
Upon her promotion, Chief Hargett and Cpt. Prince told Plaintiff that RPD
would assign her to a field training officer and she would undergo a supervisor
field training program. (Doc. 28-1 at 18-19). The RPD did not have a written
1
Plaintiff testified that she was told she would be placed on a one-year probation, instead of
six months, which is not disputed by Chief Hargett and Cpt. Prince. (Doc. 28-1 at 31-32,
72; Doc. 28-5 at 22-23; Doc. 28-4 at 13). Regardless, Plaintiff was demoted within two and
half months of being a sergeant. (Doc. 28-1 at 31-32).
3
policy for a training program until October 29, 2015. (Doc. 28-4 at 16). Plaintiff
was the first participant in the program. (Id. at 11). Over the course of Plaintiff’s
participation, the RPD made changes to the program because the program was still
being developed. (Doc. 28-1 at 18; Doc. 28-7, ¶ 4).
Initially, the RPD paired Plaintiff with Sgt. Miller. (Doc. 28-1 at 19). Sgt.
Miller evaluated Plaintiff stating that she failed to exhibit command presence,
failed to demonstrate an ability to control situations when responding to calls, had
difficulty organizing officers and distributing calls for service, appeared to lose
track of service calls and whereabouts of her officers, and appeared to be
unfamiliar with certain department policies and procedures. (Id. at 19-20, 120). 2
Sgt. Miller also noted that Plaintiff was not receptive to feedback, sleeps during
shifts, is insubordinate, and overall has leadership and professional weaknesses.
(Id. at 123-24). Subsequently, Sgt. Franks evaluated Plaintiff, remarking that
Plaintiff had displayed poor leadership skills, poor professionalism, poor
knowledge of general orders, and appeared to be sleeping in her patrol car. (Id. at
121-22).
Plaintiff admitted to occasionally sleeping during a shift. (Id. at 21-22).
She also testified that she questioned the qualifications of the training officers
2
Plaintiff was not given an “Advance with GPS” even though she asked for one. (Doc. 28-1 at
33, 71).
4
assigned to her. (Id. at 20-21). Plaintiff admitted defending or justifying her
actions when receiving criticism from her supervisors. (Id.).
Sgts. Miller and Franks recommended that Plaintiff not continue as
sergeant (Doc 28-1 at 121-24). On October 29, 2015, Chief Hargett demoted
Plaintiff to patrol officer after reviewing her evaluations and speaking to Sgts.
Miller and Franks and Cpt. Prince. (Doc. 28-1 at 27; Doc. 28-7, ¶ 5; Doc. 28-5 at
26; Doc. 39-22).
At the time of Plaintiff’s demotion, Mickey Gentry, Plaintiff’s husband,
served as a volunteer reserve officer at the police department. (Doc. 28-7, ¶ 9).
Since 2004, Defendant had also employed Mr. Gentry as a firefighter. (Doc. 28-3
at 16). Mr. Gentry went to Mayor Grissom to discuss his wife’s demotion. (Doc.
28-1 at 41, 78). Among other things, Mr. Gentry told the mayor that Chief Hargett
demoted Plaintiff because Plaintiff was not one of Chief Hargett’s “drinking
buddies.” (Doc. 28-3 at 9, 23-26).
Chief Hargett removed Mr. Gentry from the reserve officer program and
told him not to come to the police station. (Doc. 28-7, ¶ 9). Cpt. Prince told
Plaintiff that Mr. Gentry was not allowed at the police station. (Doc. 39-83,
recording).3 After the RPD demoted Plaintiff, the RPD placed Plaintiff into the
3
Plaintiff labeled this recording as PX-71 on the disc submitted to the Court, but incorrectly
labeled the recording as PX-72 in her conventional filing. (Doc. 39-83).
5
position of a patrol officer. (Doc. 28-1 at 131). On November 1, 2015, Plaintiff
appealed her demotion to the CSB. (Doc. 28-1 at 79; Doc. 39-27). On November
4, 2015, Plaintiff filed a charge of discrimination with the EEOC. (Doc. 28-1
at 80; Doc. 39-28). 4
On December 14, 2015, Cpt. Prince reviewed Plaintiff’s performance,
noting that her job knowledge was “average considering her years of experience,”
she does not take constructive criticism well or follow directions, and she “tends
to maximize any opportunity to use her sick leave.” (Doc. 39-34). On December
15, 2015, Lt. Shackelford reviewed Plaintiff’s performance, confirming many of
Cpt. Prince’s statements. (Doc. 39-35). For example, Lt. Shackelford stated that
Plaintiff was not dependable and that he “was in full support of [Plaintiff’s]
removal [as sergeant], and I still stand beside that decision.” (Id.).
In late January 2016, Plaintiff informed Chief Hargett that she was pregnant
and requested that he keep the information private. (Doc. 28-1 at 83).
On March 5, 2016, during the night shift, Sgt. Franks observed Plaintiff
sitting in her patrol vehicle in the police station parking lot. (Id. at 132-33). Sgt.
Franks believed Plaintiff was sleeping and took a picture of her. (Id. at 134,
4
On December 7, 2015, Plaintiff wrote the City Council, requesting that she be reinstated as
sergeant. (Doc. 39-2 at 40; Doc. 39-30; Doc. 39-80 at 28). At that time, Plaintiff still held the
position of sergeant because the City Council had not officially demoted her. (Doc. 39-99). On
December 7, 2015, the City Council demoted Plaintiff. (Doc. 39-2 at 1, Doc. 39-33). On
December 11, 2015, Plaintiff appealed the CSB’s decision to demote her. (Doc. 39-3 at 1;
Doc. 39-33). On March 8, 2016, the CSB ruled Plaintiff did not have the right to appeal the
demotion. (Doc. 39-3 at 3; Doc. 39-61).
6
photograph). Plaintiff testified that she was not asleep, but she does not dispute
that Sgt. Franks believed she was asleep. (Id. at 22, 35-36).
On March 7, 2016, Mr. Gentry and Plaintiff went to the police station to
speak to Chief Hargett about Sgt. Franks. (Doc. 28-1 at 36-37, 41). The RPD’s
General Order No. 100 I. (O.) provides that employees are required to follow the
chain command to report department related issues unless an employee has a
complaint of sexual harassment. (Doc. 28-1 at 135-36, 141; Doc. 28-7, ¶ 10).
Plaintiff testified that she was not reporting sexual harassment. (Doc. 28-1 at 40).
On March 10, 2016, Plaintiff interviewed for another sergeant position. (Id.
at 84). That same day, Chief Hargett suspended Plaintiff for five days without pay
for sleeping on duty and an additional five days without pay for bypassing the
chain of command. (Doc. 39-39).5
Plaintiff gave Chief Hargett a note from her doctor, dated March 21, 2016,
requesting that she be placed in the office, preferably on a day shift. (Doc. 39-43).
Chief Hargett requested clarification from Plaintiff’s physician as to the extent of
her medical limitations, which he received on April 1, 2016. (Doc. 28-2 at 35; Doc.
28-4 at 24, 39, 42). The physician’s note stated that Plaintiff could not wear her
5
On March 10, 2016, Ms. Gentry requested an appeal of this action to the CSB. (Doc. 39-41).
On March 28, 2016, the CSB notified Chief Hargett and Plaintiff that her hearing was set for
April 14, 2016. (Doc. 39-46).
7
utility belt, 6 and she could not be on the street because of a risk of being hit in the
abdomen. (Doc. 28-4 at 42).
On March 24, 2016, Plaintiff filed a second charge of discrimination with
the EEOC. (Doc. 39-9 at 8).
The RPD did not have a “light duty” position. (Doc. 28-1 at 88). Therefore,
the RPD placed Plaintiff on a medical leave and required her to use sick or
personal leave to take time off. (Doc. 28-1 at 88; Doc. 28-4 at 39; Doc. 28-8 at 7).
Plaintiff could request leave donations from other employees if she exhausted her
own leave time. (Doc. 28-8 at 7). Several Fire Department employees donated
sick leave time to Plaintiff. (Doc. 28-1 at 63). No RPD employees donated time to
Plaintiff, despite her requests to RPD employees for donated time. (Id. at 65).
During her medical leave, the RPD offered Plaintiff dispatch shifts when
available so she would not have to use her own leave time or donated leave time.
(Doc. 28-1 at 42-43; Doc. 28-4, at 40). On June 18, 2016, while Plaintiff was
working a dispatch shift, Mr. Gentry came to the police station and went inside the
dispatch room with Plaintiff. (Doc. 28-1 at 42-43). Lt. Shackelford observed the
incident and reported it to Cpt. Prince. (Doc. 28-4 at 27; Doc. 28-5 at 19).
Plaintiff was suspended for 14 days without pay. (Doc. 28-1 at 44-45).
6
All patrol officers are required to wear a duty belt. (Doc. 28-4 at 40). The duty belt includes
the officer’s firearm, extra magazines, handcuffs, and other necessary items. (Id.).
8
In September 2016, Plaintiff’s child was born. (Id. at 6, 94). On October
12, 2016, the RPD disciplined Plaintiff for taking her sick leave donation forms to
City Hall, rather than turning them in to Chief Hargett. (Doc. 28-1 at 45, 95; Doc.
39-52; Doc. 39-53). On November 4, 2016, Plaintiff filed a third charge of
discrimination with the EEOC related to her demotion. (Doc. 39-8 at 12).
On November 7, 2016, Plaintiff returned to full-time duty. (Doc. 28-1 at
95). Plaintiff told Cpt. Prince that she needed to pump breast milk for her child.
(Id.). The RPD told Plaintiff she could use the break room or go home during
breaks to pump breast milk. (Id. at 50). Plaintiff chose to go home during her paid
breaks. (Id.). The RPD required Plaintiff to remain on duty while traveling home
until she went out of her service area, at which time she was required to call or
text. (Id.).
The RPD instructed Plaintiff to make up extra time at the end of her shift
because her breaks took longer than the allotted hour and Plaintiff sometimes
arrived at work late. (Doc. 28-4 at 30; Doc. 39-55). On December 12 and 27,
2016, the RPD counseled Plaintiff and gave her a written directive regarding her
breaks, but the RPD did not discipline her. (Doc. 28-1 at 82, 96; Doc. 28-2 at 51;
Doc. 28-5 at 21-22; Doc. 39-55; Doc. 39-56).
9
At some point, Plaintiff’s physician instructed her to breastfeed her baby
instead of pumping milk. (Doc. 28-1 at 49-50, 97; Doc. 39-84, recording). 7
Plaintiff worked a 12-hour shift and needed three breastfeeding breaks, which
were about 20 minutes each. (Doc. 39-84, recording).
Around this time, a shooting occurred in Russellville, Alabama, during
which the suspect was injured and required medical care. (Doc. 28-1 at 47). The
RPD transported the suspect to Huntsville Hospital in Huntsville, Alabama. (Doc.
28-4 at 32). The RPD scheduled Plaintiff to guard the suspect at the hospital in
Huntsville. (Id.) Plaintiff raised concerns about breastfeeding while guarding the
suspect. (Doc. 28-1 at 47). The RPD told Plaintiff to take her concerns up the
chain of command, which she did. (Id.).
The RPD rearranged the schedule and
reassigned Plaintiff that day. (Id.). The RPD scheduled Plaintiff for a night shift
that evening in Russellville. (Doc. 28-1 at 97-99; Doc. 28-4 at 33-34).
A few weeks later, Cpt. Prince made a schedule change and reassigned some
officers, including Plaintiff to the night shift. (Doc. 28-5 at 27; Doc. 28-1 at 46;
Doc. 30, Ex. L, recording). Plaintiff complained to her lieutenant and then to Cpt.
Prince about the schedule change. (Doc. 30, Ex. L, recording). Cpt. Prince told
her it was a temporary assignment until the new sergeants gained experience.
(Doc. 28-1 at 49; Doc. 30, Ex. L, recording). Plaintiff submitted a written request
7
Although the dates of certain events provided by the parties are undisputed, the Court was
unable to find evidence supporting the dates in the citations provided.
10
to speak to the City Council instead of taking her complaints to Chief Hargett.
(Doc. 28-1 at 46, 52). Plaintiff did not tell anyone that she had requested to speak
to the City Council. (Id. at 52).
The City Council held a regularly scheduled meeting, and at Plaintiff’s
request, the City Council spoke to her in a private executive session. (Doc. 28-4 at
30). Plaintiff hoped the City Council would “step in and just tell my supervisors to
back off a little bit and just let me do my job.” (Doc. 28-1 at 46). Plaintiff spoke to
the City Council about the assignment to guard the suspect at Huntsville Hospital.
(Id. at 47-48). The City Council questioned Chief Hargett about this matter and
others issues related to Plaintiff. (Doc. 28-4 at 30). Based on the questions, Chief
Hargett understood that Plaintiff had led the City Council to believe that the RPD
required Plaintiff to travel to Huntsville to guard a suspect. (Doc. 28-4 at 30, 32,
34; Doc. 28-6 at 4). The next working day, the RPD placed Plaintiff on paid
administrative leave. (Doc. 28-1 at 55; Doc. 28-4 at 32, 34).
The following day, the RPD instructed Plaintiff to come to the station with
her police equipment. (Doc. 28-1 at 56; Doc. 28-4 at 34). Plaintiff testified that
she thought the RPD would terminate her employment and spoke to her father,
who was with her at the time in Birmingham, about her anticipated termination.
11
(Doc. 28-1 at 56).8
When Plaintiff arrived, Chief Hargett told her that she had
violated the chain of command and could resign or be terminated. (Doc. 28-1 at
57-58; Doc. 28-4 at 32, 35; Doc. 39-79, recording). Plaintiff opted to resign.
(Doc. 28-1 at 60-61). She asked if she should go home to write her resignation
letter. (Id. at 58). Chief Hargett told her she could use the computer that was in
their room. (Id.). She did not request additional time to consider her decision.
(Id.).
On April 27, 2017, Plaintiff filed a third charge of discrimination with the
EEOC. (Doc. 39-59).
On September 6, 2016, Plaintiff filed this lawsuit --- (Doc. 1, No. 3:16-cv01466-MHH), 9 --- and on July 4, 2017, Plaintiff filed a second lawsuit --- (Doc.
1, No. 3:17-cv-01127-AKK). 10 On November 30, 2017, another judge on this
Court consolidated these two cases under case number 3:16-cv-01466. (Doc.
21).11
8
With travel time and other errands, over two hours elapsed between the call from the RPD and
Plaintiff arriving at the police station. (Doc. 28-1 at 56).
9
Count I alleges a hostile work environment and a discriminatory demotion in violation of Title
VII, 42 U.S.C. § 2000e. (Doc. 1, No. 3:16-cv-01466, ¶¶ 13-17).
10
Counts I and II allege retaliation and discriminatory discharge, respectively, in violation of
Title VII. (Doc. 1, No. 3:17-cv-01127, ¶¶ 141-51). Count III alleges a violation of the FLSA
related to breastfeeding her child. (Id., ¶¶ 152-58). Counts IV and V allege disparate treatment
and a hostile work environment, respectively, in violation of 42 U.S.C. § 1983. (Id., ¶¶ 159-69).
11
On October 26, 2018, this case was reassigned to the undersigned judge. (Doc. 47).
12
III.
ANALYSIS
A.
Retaliation Claim
Plaintiff alleges that Defendant retaliated against her in violation of Title
VII. (Doc. 1 at 18-21, ¶¶ 141-45, No. 3:17-cv-01127).12 The burden-shifting
analysis established by the Supreme Court in McDonnell Douglas Corporation v.
Green, 411 U.S. 792 (1973), applies to Plaintiff’s retaliation claim because she has
not put forth direct evidence of retaliation. Under McDonnell Douglas, Plaintiff
first must establish a prima facie case of retaliation. Id. If she is able to establish a
prima facie case of retaliation, then the burden shifts to Defendant to produce a
legitimate, nonretaliatory reason for the action. Id. Once Defendant meets its
burden, then Plaintiff must show that the proffered reason is a pretext for
retaliation. Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1310 (11th Cir.
2016).
To establish a prima facie case for retaliation, a plaintiff must show that: (1)
she engaged in statutorily protected activity, (2) she suffered a materially adverse
action, and (3) there was a causal connection between the protected activity and the
materially adverse action. Howard v. Walgreen Co., 605 F.3d 1239, 1244 (11th
Cir. 2010).
12
In her brief, Plaintiff titles her argument as “RETALIATION 42 USC 2000(e) AND 1983
(EP).” (Doc. 52 at 38). However, Plaintiff has not alleged a retaliation claim under 42 U.S.C. §
1983. (See Doc. 1, Nos. 3:17-cv-01127, 3:16-cv-01466).
13
As to the first element, Defendant does not dispute that Plaintiff’s filing of three
EEOC charges and two lawsuits constitute statutorily protected activity. (Doc. 50,
p. 35).13 Accordingly, the Court proceeds with its analysis of the other factors
under the burden-shifting framework.
Under the next prong of the prima facie case, Plaintiff alleges that she
suffered 13 different materially adverse actions:
[1] [Plaintiff’s] husband was banned from the premises and taken out
of reserves, [2] she was not given the right to appeal her demotion
contrary to policy, [3] her co-workers were told not to associate with
her, [4] she was followed and verbally harassed and told she was
disgruntled and she needed to quit, [5] she was written up on March
10, 2015 wherein she was docked 5 days’ pay for sleeping and 5 more
days for her complaint of disparate treatment/harassment to the chief,
[ 6 ] her doctor’s excuse was refused, [7] she was not donated hours
by anyone in her department, [8] she was only given half of the hours
donated to her, [9] she was written up for pump/breastfeeding breaks,
[10] she was written up and docked 14 days’ pay because her husband
came to the department to bring her lunch, [11] she was written up
just three days later because her husband did not come to the
department to turn in forms, [12] she was not promoted to Sergeant,
and [13] she was involuntarily terminated.
(Doc. 52 at 39-40) (citations omitted). With respect to these actions, the Court
considers each of the alleged adverse actions in turn.
13
Plaintiff not only asserts her filing of EEOC charges and lawsuits as statutorily protected
activity, but she also asserts additional acts of statutorily protected activity: “Gentry’s husband
went to the Mayor and threatened a lawsuit on October 29, 2015, Gentry wrote the Civil Service
Board alleging ‘discrimination and harassment’ on November 1, 2015, . . . Gentry wrote the
Civil Service Board alleging she was ‘gender/sexually discriminated and harassed’ by her
supervisors on December 11, 2015, [and Plaintiff] verbally complained to Chief of Sgt. Franks
harassment on March 7, 2016.” (Doc. 52 at 38) (citations omitted). Defendant does not contest
these additional acts of “statutorily protected activity.” (See Doc. 53).
14
1.
Mr. Gentry’s ban from police station and removal from reserves
Plaintiff argues that Mr. Gentry’s ban from the police station and removal
from officer reserves was “because of [Mr. Gentry’s] discussion with the Mayor
threatening a lawsuit.” (Doc. 52 at 40). Defendant’s argument focuses on Plaintiff
not having engaged in a statutorily protected activity yet because Mr. Gentry’s
accusations occurred “the very day [Plaintiff] was demoted.” (Doc. 53 at 8).
However, Plaintiff’s argument of a statutorily protected activity concerns Mr.
Gentry’s alleged threat of a lawsuit to the mayor.
First, Plaintiff cites a recording to support her statement that Mr. Gentry
threatened a lawsuit when talking to the mayor. (See Doc. 39-83). However, this
recording does not support her assertion that Mr. Gentry actually threatened a
lawsuit. (Id.). Second, Plaintiff generally cites to Thompson v. North American
Stainless, LP, 562 U.S. 170 (2011) without any discussion. In Thompson, the
defendant fired the plaintiff three weeks after his fiancée, who was also an
employee of the defendant, filed an EEOC charge alleging sex discrimination. The
plaintiff in Thompson then filed an EEOC charge based on retaliation. Id. at 172.
The facts in Thompson are clearly distinguishable from the facts in the instant case.
Thus, the Court finds that Plaintiff’s reliance on Thompson is misplaced, and
Thompson is inapplicable. Accordingly, the Court finds that Plaintiff has not
established a prima facie case.
15
Assuming, arguendo, that Plaintiff could establish a prima facie case,
Defendant has asserted a legitimate, nonretaliatory reason for restricting access,
i.e., Chief Hargett had “discretion as police chief to restrict access to the police
station due to [Mr. Gentry’s] baseless accusation.” (Doc. 53 at 8).
During Mr. Gentry’s conversation with Mayor Grissom, Mr. Gentry told the
mayor that one of the reasons Plaintiff was demoted was because she was not one
of Chief Hargett’s “drinking buddies.” (Doc. 28-3 at 24).14 Chief Hargett attested
that “[w]hen [Mr.] Gentry told [] Mayor David Grissom that I demoted Ms.
Gentry because she was not one of my ‘drinking buddies,’ I decided that
Mr. Gentry could no longer serve as a reserve officer and was not welcome
at the police station. I instructed him not to come down to the police station
for any reason. I did not discipline Plaintiff in any way for her husband’s
statements.” (Doc. 28-7, ¶ 9). Plaintiff has not shown that her husband’s ban
and removal from officer reserves was a pretext for retaliating against her. 15 Thus,
Defendant is entitled to summary judgment on this claim.
14
Mr. Gentry testified that after meeting with Mayor Grissom, Mr. Gentry accessed the
supervisor field training policy by virtue of his position as a reserve officer. (Doc. 28-3 at 2324). Mr. Gentry then went back to Mayor Grissom a second time that same day to discuss the
policy. (Id. at 24).
15
It is undisputed that “[r]eserve officers are volunteers who serve at the pleasure of the police
chief.” (Doc. 28-7, ¶ 9).
16
2.
Right to appeal demotion
Plaintiff asserts that “she was not given the right to appeal her demotion
contrary to policy” (Doc. 52 at 39), and that “[a]ny permanent employee, which
[she] was, can appeal disciplinary decisions, and demotion is disciplinary.” (Id. at
42-43). Defendant argues that pursuant to City policy, “only permanent (i.e., not
probationary) employees are permitted to appeal demotions” and Plaintiff was not
a permanent employee. (Doc. 53 at 9). In other words, Defendant argues that it
had a legitimate, nonretaliatory reason for not allowing Plaintiff to appeal her
demotion.
City policy grants a permanent employee “the right to appeal any
disciplinary action . . . .” (Doc. 39-38, Rule X – Rights of Review and Appeal).
Plaintiff acknowledges that she was on “promotional probation” when she became
a sergeant. (Doc. 28-1 at 104). Thus, Plaintiff was not a permanent employee with
respect to the sergeant position. Defendant argues that Plaintiff “has presented no
evidence to invalidate the City’s showing that she was not permitted to appeal her
demotion due to her probationary status.” (Doc. 53 at 9). With no other factual
support or authority, Plaintiff has failed to show that that the City’s reason for not
allowing her to appeal her demotion was a pretext for retaliation. Accordingly,
summary judgment is granted on this claim.
17
3.
Associating with co-workers
Plaintiff asserts that she suffered an adverse action when “her co-workers
were told not to associate with her.” (Doc. 52 at 39). Plaintiff does not discuss the
action or provide any evidence in support thereof. Plaintiff testified that when she
and her husband had a conversation with Officer Brett Evans about not returning
phone calls or texts, he responded that he was “told just to kind of keep my
distance from you, that I – until all your stuff is over, I can’t really talk to you.”
(Doc. 28-1 at 66). Mr. Gentry also testified that Officer Evans told him he was “no
longer allowed to talk to us” and that he did not want to lose his job. (Doc. 28-3 at
11).16 However, Officer Evans did not tell Plaintiff or her husband who told him to
keep his distance. (Doc. 28-1 at 67). Plaintiff does not demonstrate who told her
co-workers not to associate with her. Plaintiff fails to show an adverse action and
thus cannot establish a prima facie case. Accordingly, the Court grants summary
judgment on this issue.
4.
Harassing behavior
Plaintiff asserts that she suffered an adverse action when she was “followed”
and “verbally harassed.” (Doc. 52 at 39). Specifically, Plaintiff states, “Supervisor
16
Mr. Gentry’s testimony recounts a number of text messages he sent to Officer Evans but went
unanswered, as well as a Facebook message Mr. Gentry sent to Officer’s Evans’s wife, stating
“Congratulations to you, and thank you for not blocking me or staying friends with us. [Officer
Evans] won’t even talk to us now, after all . . . we’re the only ones that encouraged him . . . and
stuck up for him when everybody else in the department is talking badly of him. And now he’s
one of them.” (Doc. 28-3 at 13).
18
Franks told [her] she was disgruntled and needed to quit, 17 and when [she] told
[Officer] Shackelford she could not watch an inmate and breastfeed, he told her
she needed to quit again.” (Id. at 42). Plaintiff’s only argument is that Sgt. Franks
and Lt. Shackelford were supervisors telling her to quit based on “gender based
issues.” (Doc. 52 at 42). With no evidence or authority, Plaintiff fails to establish
the elements of a prima facie case based on this single statement.
Even if Plaintiff could establish a prima facie case, Defendant asserts that
Sgt. Franks’s actions in monitoring Plaintiff’s whereabouts and activities were
legitimate and nonretaliatory because his actions were consistent with his job
duties. (Doc. 53 at 11). Sgt. Franks was Plaintiff’s supervisor and thus was
responsible for keeping track of her, as well as other officers under his supervision.
(Doc. 28-1 at 37). Plaintiff agreed that she had a GPS for that purpose and had no
evidence of how much supervision was being given to other officers. (Id. at 3738). Plaintiff’s questioning of how Sgt. Franks could be doing his job properly if
he was constantly following her around does not establish pretext. (Doc. 28-1 at
37).
Plaintiff does not show that Defendant’s reason was a pretext for retaliation.
Accordingly, summary judgment is granted on this claim.
17
Apparently, this comment was made by Sgt. Franks after he took a picture of Plaintiff
allegedly asleep in her car while on duty. (Doc. 28-1 at 38).
19
5.
Docked pay for sleeping and violating chain of command
a.
Sleeping incident
Plaintiff asserts that “she was written up on March 10, 2015, wherein she
was docked 5 days’ pay for sleeping” in her patrol car on March 5, 2016. (Doc. 52
at 40; Doc. 39-39).
Defendant does not address whether the plaintiff has
established a prima facie case. Accordingly, for purposes of this motion, the Court
will assume that Plaintiff has satisfied her burden. Defendant asserts it had a
legitimate, nonretaliatory reason for Plaintiff’s discipline.
The RPD’s Rule of Conduct 100, IV(C)(i)(d) states that “sleeping on duty”
is considered a serious violation. (Doc. 28-1 at 138). Plaintiff argues that she was
not asleep, but that Sgt. Franks “thought that I was sleeping.” (Id. at 35). 18 This
statement does not establish that Defendant’s reason for disciplining Plaintiff was a
pretext for retaliation. See Williams v. Fla. Atl. Univ., 728 F. App’x. 996, 999
(11th Cir. 2018) (holding that “[a]n employer who fires an employee under the
mistaken but honest impression that the employee violated a work rule is not liable
18
Sgt. Franks found Plaintiff sitting in her patrol car for a significant period of time in the RPD
parking lot. (Doc. 28-1 at 35). Plaintiff testified that she had been working on her computer and
laid her head back because she had a migraine. When Sgt. Franks saw Plaintiff, he took a picture
of her. (Id. at 35, 134). Plaintiff agreed that in the picture her eyes were closed, her mouth is
slightly open, and her head is tilted back. (Id. at 134). Furthermore, Plaintiff testified that during
her training, she did lay her head back and fall asleep “a few times” and that Sgt. Miller told her
sleeping in her patrol car was not permissible. (Id. at 21-22).
20
for discriminatory conduct”) (quoting Damon v. Fleming Supermarkets of Fla.,
196 F.3d 1354, 1363, n.3 (11th Cir. 1999)).
Plaintiff also argues that “the Chief made it clear [sleeping] is okay for
safety purposes and admitted everyone does it.” (Doc. 51 at 42).19 The Plaintiff
offers a photograph of Lt. Shackelford sleeping inside the police station. (Doc. 3918).20
Plaintiff does not discuss or provide the context of this photograph.
Furthermore, Plaintiff has failed to produce evidence of officers sleeping in their
patrol cars, as she was, and Chief Hargett being aware of these incidents. (See
Doc. 28-4 at 38). Plaintiff has not been able to show that Defendant’s reason for
disciplining her in this instance was a pretext for retaliation. Thus, summary
judgment is granted on this issue.
b.
Violating chain of command
Plaintiff asserts that she was suspended without pay for five days because
she complained to Chief Hargett about Sgt. Franks’s alleged harassment.
Defendant argues that Plaintiff violated the chain of command by taking her
complaints about Sgt. Franks straight to the Chief. Thus, Defendant asserts it had a
legitimate, nonretaliatory reason for suspending Plaintiff. Defendant does not
19
Plaintiff testified that Sgt. Miller explained to her that sleeping in her patrol car was
unacceptable. (Doc. 28-1 at 23).
20
There is a reference to a video, but it is actually a screen shot of an email with an attachment,
which is not accessible. (Doc. 39-20).
21
address whether Plaintiff has established a prima facie case. Accordingly, for
purposes of this motion, the Court will assume that Plaintiff has satisfied her
burden and will now determine whether Defendant had a legitimate, nonretaliatory
reason for suspending Plaintiff.
Plaintiff states that because her complaints involved harassment, “she can go
straight to the Chief, which she did,” and that her “actions were consistent with the
department and City sexual harassment policies.” (Doc. 52 at 42-45).
The policy states in pertinent part:
RUSSELLVILLE POLICE DEPARTMENT –
SEXUAL HARASSMENT POLICY
***
I. PURPOSE - To establish policy prohibiting Sexual
Harassment within the department.
***
2.
While all forms of harassment are prohibited, it is
the City’s policy to emphasize that Sexual
Harassment is specifically prohibited. Each City
official has a responsibility to maintain the
workplace free of any form of Sexual Harassment.
***
5.
Any employee, male or female, who believes that
the actions or words of a City Official or supervisor
or fellow employee constitute unwelcome
harassment has a responsibility to report or
complain as soon as possible to his/her supervisor
or to the Chief of Police if the complaint includes
the employee’s supervisor.
(Doc. 39-40). A plain reading of the policy at issue does not support Plaintiff’s
interpretation.
22
Defendant responds that Plaintiff’s complaints did not involve
complaints of a sexual nature and relies on the recording of her
conversation with Chief Hargett in support.
(Doc. 30, Ex. H). 21,
22
Plaintiff has not contested this evidence or cited any authority disputing
Defendant’s reason.
Furthermore, when asked if she went to see Chief Hargett to talk about
sexual harassment, Plaintiff testified, “No. I never said anything about sexual
harassment. I said that I went to the Chief of Police with my husband when he
went to talk to the Chief, and also myself complained about harassment that I was
facing.” (Doc. 28-1 at 40). 23 Plaintiff also agreed that it would be a violation
if the policy only related to harassment of a sexual nature and not general
harassment. (Id. at 42). Having reviewed the evidence, the Court finds that
Plaintiff has not shown that Defendant’s reason for suspending her was a pretext
for retaliation. Accordingly, summary judgment is granted on this claim.
21
Defendant cites to Nix v. WLCY Radio/Rahal Communications, 738 F.2d 1181, 1187 (11th Cir.
1984), for the proposition that an employer has a “right to interpret its rules as it chooses, and to
make determinations as it sees fit under those rules.” (Doc. 53 at 12, n.8).
22
The recording of the meeting between Plaintiff and Mr. Gentry and Chief Hargett confirms
that Plaintiff and Mr. Gentry confronted Chief Hargett about “harassment” by Sgt. Franks, with
no mention of anything of a sexual nature. (Doc. 30, Ex. H).
23
Plaintiff also testified, “It was actually my husband that said he wanted to speak with [Chief
Hargett] about the harassment that Sergeant Franks had been doing over the weekend. I did not
call the meeting. I did answer a few questions when Chief Hargett asked me direct questions.”
(Doc. 28-1 at 36-37).
23
6.
Doctor’s excuse
Plaintiff claims that “on March 31 Chief [Hargett] [refused] [her] doctor’s
excuse” in retaliation for filing a charge of discrimination on March 24, 2016.
(Doc. 52 at 40, 44). Defendant asserts that Plaintiff’s claim is “unsupported by the
factual record,” presumably arguing that the action never occurred. (Doc. 53 at
12).
Plaintiff gave Chief Hargett a doctor’s note requesting that she be placed in
the office with day shift hours. (Doc. 39-43). Chief Hargett requested clarification
regarding the extent of her limitations. (Docs. 28-2 at 35; Doc. 28-4 at 24, 39,
42).24 Plaintiff cites no evidence showing that Chief Hargett “refused” her doctor’s
note or suggesting that his request for clarification of her limitations was
retaliatory. (Doc. 52 at 40).25 Plaintiff fails to establish that the alleged conduct
even occurred and, thus, cannot establish a materially adverse action. Accordingly,
summary judgment is granted on this claim.
7.
Donation of sick leave time
In connection with her March 24, 2016, charge of discrimination, Plaintiff
asserts that on March 28, 2016, “no one from the police department is donating
24
In response to Chief Hargett’s request, Plaintiff’s physician stated that Plaintiff could not wear
her utility belt and could not be on the street because of the risk of an injury to her abdomen.
(Doc. 28-4 at 42).
25
Chief Hargett testified that he requested the additional information to make a determination
about whether the department could accommodate Plaintiff. (Doc. 28-4 at 39).
24
time.” (Doc. 52 at 44). Defendant asserts that Plaintiff cannot establish a prima
facie case because she has “zero evidence connecting [no donation of time] to any
retaliatory motive or action by the City.” (Doc. 53 at 13). Defendant’s argument
focuses on Plaintiff’s lack of a causal connection.
Plaintiff obtained approval from Chief Hargett to request donations of sick
leave and then emailed officers requesting donated leave. (Doc. 39-68; Doc. 28-1
at 87-89). She did not receive any donations from employees at the RPD. (Doc.
28-1 at 87-89).26 City Clerk Joe Hamilton testified that sick leave donation is
voluntary, and each employee makes the decision whether or not to donate sick
leave. (Doc. 28-8, ¶ 4). Plaintiff testified that she “assumed” someone from the
RPD directed employees not to donate leave, but she cites no evidence that
Defendant was responsible for police officers not donating leave. (Doc. 28-1 at
65-66).27 To the contrary, Chief Hargett testified that he “did not instruct any City
employee to not donate sick leave to [Plaintiff]” and was not aware of any other
City employee directing another employee not to donate leave. (Doc. 28-7, ¶ 8).
Plaintiff fails to establish a prima facie case because she cannot establish a
causal connection. Accordingly, summary judgment is granted on this claim.
26
Plaintiff received responses from three of the eight RPD employees she emailed. Those
employees explained they could not donate time because they might need to use their sick leave.
(Doc. 28-1 at 88-89).
27
Plaintiff did receive donations of sick leave from the fire department where her husband
worked. (Doc. 28-1 at 63).
25
8.
Calculation of donated sick leave
Plaintiff asserts that she was retaliated against when “she was only given
half of the hours donated to her.” (Doc. 52 at 40). Defendant argues that “she
presents no evidence to challenge the legitimate explanation regarding the
calculation of her donated sick leave or any evidence that other employees
received more favorable treatment.” (Doc. 53 at 14). Thus, Defendant asserts that
Plaintiff cannot establish an adverse action, and even if she could, Defendant had a
legitimate, nonretaliatory reason.
Plaintiff relies on a recording of Mr. Gentry talking to City Councilman
Arthur Elliot as factual support for her assertion. (Doc. 39-97). However, the
Court finds no support for her assertion in this recording. City Clerk Hamilton,
who processed the sick leave donations for Plaintiff, explained that “some donated
leave is processed as a day-to-day exchange while other donations are processed as
a straight hourly exchange,” depending on the length of the employee’s shift.
(Doc. 28-8, ¶ 5).28
City Clerk Hamilton processed sick leave that was donated to
Plaintiff in this manner. (Id., ¶ 6). City Clerk Hamilton testified that he made the
same calculations he would make for other City employees and did not base his
28
Mr. Hamilton explained: “If a firefighter works a 24-hour shift and donates sick leave to a
police officer who works a 12-hour shift, the police officer will receive half of the donated time
to match the police officer’s shift time. If an employee with an 8-hour shift donates sick leave to
an employee with a 12-hour shift, a straight hourly exchange is used because 8-hour and 12-hour
shift employees work about the same number of hours in a two week period.” (Doc. 28-8, ¶ 5).
26
calculations on Plaintiff’s gender, pregnancy, or in retaliation for any complaints
made by her. (Id., ¶ 7).
Based on the evidence above, Plaintiff has failed to show that the way
donated sick leave was calculated for her amounted to an adverse action. Thus,
Plaintiff cannot establish a prima facie case. Accordingly, summary judgment is
granted on this claim.
9.
Breastfeeding breaks
Plaintiff argues that “she was written up for pump/breastfeeding breaks.”
(Doc. 52 at 40). Specifically, she claims that on “November 7, [she] tells them she
is breastfeeding, then on December 12 and 27 she is being counseled about her
pump breaks.” (Id. at 44). In response, Defendant argues that “[t]here is nothing
materially adverse about the written counseling here because all it did was explain
to [Plaintiff] how she should be handling her pumping breaks.” (Doc. 53 at 15).
On December 12, 2016, Sgt. Miller completed a “Written Directive,”
informing Plaintiff that if she needed to take longer than her allotted one-hour
break, the RPD would accommodate her, but she needed to let her supervisor know
and make up the time at the end of her shift. (Doc. 39-55). Sgt. Miller also
reminded Plaintiff to go “out of service” and “in service” from her car radio when
she went on break. (Id.). No disciplinary action was taken against Plaintiff. On
December 27, 2016, Sgt. Miller completed a “Counseling Form,” reminding
27
Plaintiff to add additional time to the end of her shift if her breaks exceeded one
hour. (Doc. 39-56).29 No disciplinary action was taken.30
Plaintiff does not show that a materially adverse action occurred with respect
to the written directive and counseling and thus cannot establish a prima facie case
of retaliation. Assuming, arguendo, that Plaintiff could establish a prima facie
case, Defendant has produced a legitimate, nonretaliatory reason for the
counseling, i.e., that the RPD must know “whether [Plaintiff] was available to take
calls while on patrol, . . . make sure necessary shifts were covered without
incurring too much overtime costs,” and be able to “[e]xpect[] an employee to
work an entire shift.”
(Doc. 53 at 15).
Plaintiff has failed to show that
Defendant’s reasons are a pretext for retaliation. For the reasons discussed above,
summary judgment is granted on this claim.
10.
Docked pay for Mr. Gentry’s presence in dispatch room
Plaintiff asserts that on June 18, 2016, “she was written up and docked 14
days’ pay because her husband came to the department to bring her lunch.” (Doc.
52 at 40; Doc. 39-51). Defendant argues that Plaintiff cannot “overcome the City’s
29
Although unrelated to breaks, Sgt. Miller also noted that Plaintiff had reported late for one
shift and left early from four shifts, which was “unacceptable” and further violations would
result in disciplinary action. (Doc. 39-56).
30
Chief Hargett testified that a written directive gives an employee specific instructions and a
counseling form is used to make an employee aware of behavior that needs to change. (Doc. 284 at 29).
28
showing that there was a legitimate reason for the June 18, 2016 discipline.” (Doc.
53 at 17). Defendant does not address whether Plaintiff has established a prima
facie case. Accordingly, for purposes of this motion, the Court will assume that
Plaintiff has satisfied her burden and will determine whether Defendant had a
legitimate, nonretaliatory reason to discipline Plaintiff.
First, Chief Hargett had instructed Plaintiff that Mr. Gentry could not come
to the police station, even to have lunch with her, after the incident with the mayor.
(Doc. 28-1 at 44; Doc. 28-3 at 36). Second, the dispatch room, where Plaintiff was
working that day, contained computers with confidential information. (Doc. 28-1
at 43; Doc. 28-3 at 34-35).31 RPD policy required that the dispatch room be secure
to prevent unauthorized access. (Id.). Mr. Gentry did not have an official reason
to be in the dispatch room. (Doc. 28-1 at 44; Doc. 28-3 at 350). Mr. Gentry’s visit
was personal --- to bring Plaintiff her lunch. (Doc. 28-1 at 44; Doc. 28-3 at 35).
Plaintiff’s argument --- that because Mr. Gentry worked in dispatch for the fire
department, he was an “authorized person” --- is unpersuasive. (Doc. 52 at 45).
Accordingly, Defendant has proffered a legitimate, nonretaliatory reason for
disciplining Plaintiff.
31
Plaintiff and Mr. Gentry testified that Plaintiff was offered the dispatch shift so she would not
have to use her sick leave. (Doc. 28-1 at 43; Doc. 28-3 at 37).
29
Plaintiff argues that Defendant’s reason is a pretext for retaliation because
Mr. Gentry “was not in violation of policy as he was not in view of computers” and
that “others were allowed to have their lunches brought to them while working
dispatch.” (Doc. 52 at 45). This argument is without merit as Plaintiff has failed
to show that other employees’ family members went in the dispatch room and were
not disciplined. Plaintiff testified that she observed Patty Lumpkin’s husband and
father “[d]ropping off food” for Ms. Lumpkin when she was working in the
dispatch room. (Doc. 28-1 at 67-68). However, there is no evidence that the
family members went inside the dispatch room.
Chief Hargett testified that he was not aware of employees’ family members
being inside the dispatch room. He stated that he had seen spouses “bring food up
there and stand out in the hallway at the window.” (Doc. 28-4 at 27). There is no
evidence that Chief Hargett had not disciplined other employees for the same
violation committed by Mr. Gentry. 32 Plaintiff has failed to establish that
Defendant’s legitimate, nonretaliatory reason for disciplining her in this instance
was a pretext for retaliation. Accordingly, summary judgment is granted on this
claim.
32
Chief Hargett also disciplined Sgt. Josh Thompkins for not reporting Mr. Gentry’s presence in
the dispatch room. (Doc. 28-4 at 26).
30
11.
Turning in sick leave donation forms
Plaintiff asserts that “she was written up . . . because her husband did not
come to the department to turn in [donation] forms.” (Doc. 52 at 40). Defendant
argues that Plaintiff “was not disciplined or otherwise punished for her failure to
follow instructions.” (Doc. 53 at 17).
Cpt. Prince verbally told Plaintiff to bring any sick leave donation forms to
him, which she did for three months. (Doc. 28-1 at 45; Doc. 39-52). When the
forms were later dropped off at City Hall, Cpt. Prince prepared a counseling form,
reminding Plaintiff that the forms should be turned in to Chief Hargett. (Doc. 3952). Although Cpt. Prince noted that a recurrence would result in disciplinary
action (id.), Plaintiff turned in leave donation forms to City Hall again, and Cpt.
Prince prepared another counseling form. (Doc. 28-2 at 50). Cpt. Prince explained
on the form that "[t]urning in your Sick Leave form to us helps us ensure that you
are not short hours on your timesheet.” (Id.).
Despite the previous warning,
Plaintiff was not disciplined. (Id.).
The two instances of counseling do not constitute discipline. Accordingly,
Plaintiff fails to show a materially adverse action in this instance and thus cannot
establish a prima facie case.
Even if Plaintiff somehow could establish a prima facie case, Defendant
asserts that it “had a legitimate, nonretaliatory reason for Captain Prince wanting to
31
receive the sick leave donation forms in order to keep track of [Plaintiff’s] hours.”
(Doc. 53 at 17-18). Plaintiff presents no evidence that Defendant’s legitimate,
nonretaliatory reason for counseling her about her sick leave forms was a pretext
for retaliation. Accordingly, summary judgment is granted on this claim.
12.
Failure to promote
Even though Plaintiff asserts that she was retaliated against when “she was
not promoted to Sergeant” (Doc. 52 at 40), she devotes no discussion whatsoever
to this claim. 33 Accordingly, the Court considers this claim to be abandoned.
Smith v. Vestavia Hills Bd. of Educ., No. 16-842, 2018 WL 1408537, at *17 (Mar.
21, 2018) (citing Brackin v. Anson, 585 F. App’x. 991, 994 (11th Cir. 2014) (“The
parties bear the burden of formulating arguments before the district court, and
‘grounds alleged in the complaint but not relied upon in summary judgment are
deemed abandoned’ and will not be considered on appeal.”)). 34 As such, summary
judgment is granted with respect to this claim.
13.
Termination/Resignation
Plaintiff asserts that she was retaliated against when “she was involuntarily
terminated.” (Doc. 52 at 40). Defendant argues that Plaintiff cannot establish a
33
Defendant asserts that Plaintiff never raised a lack of promotion claim during her deposition.
(Doc. 53 at 18).
34
Accordingly, the Court does not address Defendant’s argument that Plaintiff did not exhaust
her administrative remedies. (Doc. 53 at 18).
32
prima facie case of retaliation because she cannot show that she suffered a
materially adverse action since she voluntarily resigned. (Doc. 53 at 19).
Plaintiff argues that her resignation was not voluntary and relies on
Rodriguez v. City of Doral, 863 F.3d 1343 (11th Cir. 2017), in support. (Doc. 52 at
52). In Rodgriguez, the Eleventh Circuit noted that a resignation is voluntary
unless the employee can establish that the resignation was (1) forced by coercion
or duress or (2) was obtained by deceiving or misrepresenting a material fact. Id.
at 1352. Plaintiff relies on the first of these means to establish that her resignation
was not voluntary.
In analyzing a claim of coercion or duress, the Eleventh Circuit noted that it
must consider the “totality of the circumstances” and identified a non-exhaustive
list of five factors to guide the analysis:
(1) whether the employee was given some alternative to resignation;
(2) whether the employee understood the nature of the choice he was
given; (3) whether the employee was given a reasonable time in which
to choose; (4) whether the employee was permitted to select the
effective date of the resignation; and (5) whether the employee had
the advice of counsel.
Rodriguez, 863 F.3d at 1352 (citing Hargray v. City of Hallandale, 57 F.3d 1560,
1568 (11th Cir. 1995)).
The Rodriguez Court noted that the first factor focuses on an analysis of
whether the employee had any “real alternatives,” which is determined by an
objective standard. Id. “[T]he other enumerated factors bear on the assessment of
33
whether an alternative qualifies as a ‘real alternative.’” Id. Even if the alternative
is “‘comparatively unpleasant’ to termination,” that does not necessarily mean that
the resignation is not a “real alternative.” Id.
The Eleventh Circuit has recognized that “resignations can be voluntary
even where the only alternative to resignation is facing possible termination for
cause . . . .” Id; see also Jones v Allstate Ins. Co., 707 F. App’x. 641, 646 (11th
Cir. 2017) (stating that “Plaintiff’s decision to voluntarily resign in the face of a
possible termination is not a constructive discharge,” and thus, Plaintiff failed to
establish an adverse action as part of her retaliation claims brought under the ADA,
FMLA, and Title VII).
However, the “one exception to this rule is where the
employer actually lacked good cause to believe that grounds for the termination . . .
existed.” Hargray, 57 F.3d at 1568.
The record in this case supports Defendant’s contention that Plaintiff was
provided with a real alternative to resignation and understood the nature of her
choices. As an initial matter, the Court notes that the record includes the audio
recording of the meeting between Chief Hargett and Plaintiff. (Doc. 39-79). The
meeting lasted about 20 to 25 minutes. (Id.). Chief Hargett started the meeting by
informing Plaintiff that she had violated the chain of command again and that he
had previously told her that a reoccurrence would result in disciplinary action.
(Id.). Chief Hargett then told her that he was treating her like everyone else and
34
giving her the opportunity to resign, so she is “leaving on her own free will” and
will not be terminated. (Doc. 39-79; Doc. 28-1 at 57). Plaintiff responded that if
she had a choice between resigning and being terminated, she would rather resign.
(Doc. 39-79).35 Chief Hargett reiterated that he always tries to give people the
opportunity to resign because it looks better than a termination when they are
trying to get another job. (Id.).
Plaintiff asked whether she should turn in a resignation letter that afternoon.
Chief Hargett responded that the resignation would be effective immediately.
(Doc. 39-79). Plaintiff responded again that she wanted to write a letter, and Chief
Hargett told her that was fine “if that’s what she wanted to do.” (Id.). She asked if
she should type it and bring it back, and he said she could write it at the office “if
you want.” (Id.). Parts of the recording are inaudible, but according to Plaintiff’s
testimony, Chief Hargett told her that there was a computer in the room and that
she was “welcome to use the supervisor computer.” (Id.; Doc. 28-1 at 58). Chief
Hargett did not stay in the room while Plaintiff wrote her resignation letter. (Doc.
28-1 at 61).
Based on the evidence, Plaintiff had advance notice of her impending
termination. The day after the City Council meeting in which Plaintiff voiced her
35
Several months later, Plaintiff testified that she appreciated the opportunity to resign as
opposed to being terminated and that she would still choose resignation over termination. (Doc.
28-1 at 60-61).
35
complaints, she reported to work. (Doc. 28-1 at 55). But Chief Hargett sent her
home early, informing her that she was being “placed on administrative leave
based on [her] going to the Council meeting.” (Id.) The next day, while Plaintiff
was in Birmingham with her father, the RPD called Plaintiff and told her to come
to the station to meet with Chief Hargett and to bring all of her equipment and
materials. (Id. at 56). Plaintiff acknowledged that she “assume[d] since I had to
bring in all of my equipment, that I was being fired.” (Id.). Plaintiff had at least
two hours between the phone call and arriving at the station. (Id.). 36 Plaintiff told
her father about the phone call and told him that she thought she was going to be
terminated. (Id.). Plaintiff could have called her counsel during this time but did
not. 37 When asked whether she was considering trying to resign before being
terminated, Plaintiff testified that she “went into the meeting just with an open
mind . . . figuring [she] was being fired, but [] wasn’t 100 percent.” (Doc. 28-1 at
56). Clearly, Plaintiff had some knowledge of what was about to happen and some
time to contemplate the situation. See Hargray, 57 F.3d at 1569 (recognizing that
the plaintiff had advance notice of the charges against him).
36
Plaintiff testified that she had to drive from Birmingham to Russellville, drop off her father, go
home to get her equipment, and then go to the station. (Doc. 28-1 at 56).
37
Defendant points out that Plaintiff was already represented by counsel with respect to her
EEOC and lawsuit filings and that her counsel is located in Birmingham, where Plaintiff was at
the time she received the phone call from the RPD. (Doc. 50 at 34; Doc. 53 at 19).
36
While it is true that Plaintiff was not permitted to select the effective date of
resignation and did not have the advice of counsel during the meeting, the
circumstances under which Plaintiff signed her resignation were not coercive. The
recording indicates that the tone and environment of the meeting was relaxed.
Plaintiff implies that somehow pressure was exerted because “[t]hey even held the
baby while she typed [her resignation] up on their computer.” (Doc. 52 at 52).
However, the recording reveals friendly conversation between Plaintiff and her coworker about the baby while Plaintiff typed her resignation.
(Doc. 39-79).
Furthermore, Plaintiff testified that there was nothing coercive or threatening about
the situation. (Doc. 28-1 at 59-60).
See Hargray, 57 F.3d at 1570 (transcript
revealed that “interview was conducted under a casual atmosphere, during which
[Plaintiff] at times even laughed with the police”).
The Hargray Court also recognized that “cases finding a resignation to be
involuntary based on coercion or duress involve circumstances much more
coercive than those in the instant case.” Hargray, 57 F.3d at 1570. Those cases
involved situations in which the employee’s repeated requests for additional time
and to speak to counsel were ignored, the employee was not informed of the
charges or grounds for termination, and threatening tactics were used. The facts in
Rodriguez are also inapposite to the facts in the instant case. In Rodriguez, the
employer refused to tell the plaintiff why he was being fired, the plaintiff only
37
learned of his termination at the moment he received his letter of termination, the
employer refused to give him a reason for his termination, the plaintiff had five
minutes to agree to submit his resignation, and the resignation letter was written by
the employer, not the plaintiff. 863 F.3d at 1353-54.38 In the instant case, Plaintiff
did not ask for additional time, did not request to speak to counsel, knew the
grounds for her termination, and wrote her own resignation letter. (Doc. 39-79).
Finally, Defendant had good cause to believe it had grounds to terminate
Plaintiff. Defendant told Plaintiff she had violated the chain of command again.
Rather than speak to Chief Hargett about the temporary schedule change to night
shift (which had not yet been implemented), Plaintiff decided to go to City Council
without telling anyone at the RPD. (Doc. 28-1 at 46, 52). Plaintiff also misled the
City Council to believe she had been required to undertake the assignment
guarding the inmate at Huntsville Hospital ,which did not occur. (Doc. 28-1 at 4748; Doc. 28-4 at 30, 32, 34; Doc. 28-6 at 4). Thus, this case does not fall into the
“one exception to this rule [] where the employer actually lacked good cause to
believe that grounds for the termination . . . existed.” Hargray, 57 F.3d at 1568.
Based on the evidence in this case and authority discussed above, the Court
finds that Plaintiff has not overcome the presumption that her resignation was
38
The court ultimately found a coercive atmosphere existed, and thus, the plaintiff’s resignation
was not voluntary. Rodriguez, 863 F.3d at 1354.
38
voluntary. Plaintiff fails to prove an adverse action, necessary to establish a prima
facie case. Accordingly, the Court grants summary judgment on this claim.
B.
Gender Discrimination Claims
Plaintiff asserts claims of gender discrimination under Title VII and Section
1983. Discrimination claims under both statutes are analyzed under the same legal
framework. Quigg v. Thomas Cty. Sch. Dist., 814 F.3d 1227, 1235 (11th Cir.
2016). Discrimination claims can be established based on direct or circumstantial
evidence. Id. Plaintiff has not produced direct evidence of gender discrimination,
relying instead on circumstantial evidence.
Thus, Defendants assert that the
burden-shifting analysis set forth in McDonnell Douglas, 411 U.S. at 803, applies
to Plaintiff’s claims.
Plaintiff, on the other hand, argues that she does not have to adhere to a strict
McDonnell Douglas framework and that the “appropriate framework for
examining mixed motive claims” is the standard set forth in Quigg, 814 F.3d at
1232-33. (Doc. 52 at 46). Under Quigg, a plaintiff need only offer “‘evidence
sufficient to convince a jury that: (1) the defendant took an adverse employment
action against the plaintiff; and (2) [a protected characteristic] was a motivating
factor for the defendant’s adverse employment action.’” Id. at 1239 (citation
omitted). “In other words, the court must determine whether the ‘plaintiff has
presented sufficient evidence for a reasonable jury to conclude, by a preponderance
39
of the evidence, that [her protected characteristic] was a motivating factor for [an]
adverse employment decision.’” Id.
Defendant argues that Plaintiff asserts a mixed-motive theory for the first
time in her summary judgment response, in contrast with her complaints and
overall argument which focus on a single-motive theory. (Doc. 53 at 21). The
Eleventh Circuit held that “a plaintiff should not be required to label her complaint
‘as either a ‘pretext’ case or a ‘mixed motives’ case’ . . . ‘because ‘[d]iscovery
often will be necessary before the plaintiff can know whether both legitimate and
illegitimate considerations played a part in the decision against her’.” Babb v.
Sec’y. Dep’t of Veterans Affairs, 743 F. App’x 280, 286-87 (11th Cir. 2018)
(citations omitted). The Babb Court held that the plaintiff “sufficiently raised her
mixed-motive theory . . . by arguing it in response to the [defendant’s] summary
judgment motion.” Id. at 287. Accordingly, the Court applies the Quigg mixedmotive framework to Plaintiff’s discrimination claims of demotion, disparate
treatment, and constructive discharge.
1.
Demotion
Plaintiff alleges a discriminatory demotion on the basis of gender in
violation of Title VII (Doc. 1, ¶ 16, No. 3:16-cv-01466). Defendant does not
dispute that Plaintiff’s demotion constitutes an adverse employment action.
40
The Court turns to the second factor. To show gender was a motivating
factor, Plaintiff argues that “Chief [Hargett] and [Cpt.] Prince told [her] in the
beginning they were going to do thing [sic] differently with her,” requiring her to
go through training, and telling her “‘it’s not because you are female.’” (Doc. 52
at 47; Doc. 28-1 at 29, 74; Doc. 39-17, part 2 recording). Although Plaintiff agrees
that there should be a training program for new supervisors and officers, she
objects to being the first officer to go through supervisor training. (Doc. 28-1 at
24).
She complains that no sergeants before her were subject to the same
supervisor training. The facts show that the RPD previously did not require either
men or women to undergo a training program.
Furthermore, that group of
sergeants, who did not go through training, were not all male; the group included a
female sergeant, Linda Michaels. (Doc. 28-4 at 7). 39 Thus, it was not only males
who were spared the training program.
Furthermore, Chief Hargett and Cpt. Prince explained that the training
program was being implemented for all officers and that someone had to be the
first officer to go through the program. (Doc. 53 at 23-24; Doc. 39-17, part 2
recording). Chief Hargett and Cpt. Prince stated that although she was the first, it
39
Ms. Michaels was promoted to sergeant prior to Chief Hargett’s hiring at the RPD, and served
as sergeant for approximately ten years. (Doc. 28-4 at 7).
41
had nothing to do with her being female, or white, or because she had red hair.
(Id.).
Plaintiff also argues that Defendant “backdated the [training] policy to
appear it was in effect before her demotion, then removed the day when producing
it in this lawsuit so [Plaintiff] would not be able to establish it was enacted after
her demotion.” (Doc. 52 at 50- 51). Cpt. Prince testified that he did not backdate
the policy, the department had been working on the policy for some time, and the
policy was published for employees to see on October 29, 2015. (Doc. 28-5 at 1819). The RPD implemented the training program “to compensate for the relative
inexperience of officers, including [Plaintiff], who would hold supervisory
positions.” (Doc. 53 at 23; Doc. 39-17, part 2 recording). The parties do not
dispute that the RPD required “every officer promoted to sergeant since [Plaintiff]
. . . to successfully complete the program.” (Doc. 50 at 8, ¶ 14; Doc. 52 at 6, ¶ 14).
These officers included males and a female. (Doc. 50 at 8, ¶ 14; Doc. 52 at 6, ¶ 14;
Doc. 28-1 at 30). Plaintiff agreed that whether the new supervisor training policy
was officially published or not, failing to successfully complete the training would
be a valid reason to demote her. (Doc. 28-1 at 31). Accordingly, Plaintiff’s
conclusory arguments, without more, are without merit.
Plaintiff also argues that because her last evaluation prior to her promotion
to sergeant was “glowing and contradicted everything in the field training
42
evaluations,” she was “qualified for the position.” (Doc. 52 at 48). However, even
if Plaintiff’s evaluation as a patrol officer was “glowing,” it is irrelevant in
determining her performance as a sergeant.
The field training evaluations
measured her abilities as a sergeant, and these evaluations reflected Plaintiff’s
failure to exhibit command presence and control situations, difficulty organizing
officers and distributing calls, unfamiliarity with policies and procedures,
sleeping on duty, and insubordination. (Doc. 28-1 at 19-20, 120-26). The Court
has already addressed above the issue of sleeping in a patrol car while on duty. As
for insubordination, Plaintiff merely responds that “[s]he was criticized for
explaining her actions and trying to engage with her superiors.” (Doc. 52 at 50).
She also asserts that Defendant did not sit down with her daily and give her the
opportunity to correct criticisms. (Id.). However, Chief Hargett made clear to
Plaintiff during their meeting that he had instructed the field training officers to
review Plaintiff’s performance with her at the end of each shift. (Doc. 39-20).
Plaintiff has either admitted some of her deficiencies or failed in large part to
dispute the shortcomings reflected in her evaluations.40
Finally, when Plaintiff was asked, “having you go through that training had
nothing to do with your gender, correct?” Plaintiff replied, “No.”
40
(Id.).
Although Plaintiff argues that she had just as many years of experience as Sgts. Miller and
Franks, she fails to establish that Sgts. Miller and Franks had similar issues in their evaluations
as sergeants. (Doc. 52 at 48).
43
Accordingly, Plaintiff fails to show by a preponderance of the evidence that her
gender was a motivating factor in the decision to demote her. Thus, the Court
grants summary judgment on Plaintiff’s demotion claim.
2.
Disparate Treatment
Plaintiff alleges disparate treatment in violation of 42 U.S.C. § 1983. (Doc.
1, ¶¶ 159-63, No. 3:17-cv-01127).
Specifically, she argues that she received
discriminatory assignments and discipline. (Doc. 52 at 48).
Regarding discriminatory assignments, Plaintiff asserts that the RPD
scheduled her to guard an inmate overnight in Huntsville (id.) and she did “not
hav[e] the option or the accommodation of how [she] was supposed to express
milk or have [her] child brought up to [her] to the hospital without being able to
turn [her] back on the suspect.”
(Doc. 28-1 at 47).
Defendant, however,
reassigned Plaintiff to a night shift in Russellville. (Id.).41 Accordingly, Plaintiff
fails to show that the action even occurred.
Plaintiff asserts that her reassignment to a night shift in Russellville was
discriminatory because a “rookie male was assigned to day shift.” (Doc. 52 at 49).
41
Plaintiff complains that she was “forced to haggle with her supervisors for several hours trying
to resolve the breastfeeding issue.” (Doc. 52 at 49). However, Plaintiff agreed that the situation,
resulting from a shooting in Russellville, was unusual. (Doc. 28-1 at 47). Plaintiff complains
that she was working the 6:00 am to 6:00 pm shift when the decision was made to reassign her to
night shift. (Doc. 52 at 49). Even though she went home at 10:00 am that day, she complains
that she had very little time in between her day shift and night shift, which violated policy. (Id.).
Plaintiff does not refer to the policy at issue and does not explain how the reassignment to night
shift differed from her original assignment to guard the inmate “overnight.” (Id.).
44
Claims involving reassignments are “especially important” because in most cases,
“an employee alleging a change in work assignments, without any tangible harm,
will be outside the protection provided by Title VII’s anti-discrimination clause.”
Hall v. Dekalb Cty. Gov’t, 503 F. App’x 781, 787 (11th Cir. 2013) (citation
omitted). The Court does not “sit as a ‘super-personnel department,’ and it is not
[the Court’s] role to second-guess the wisdom of [the defendant’s] business
decisions—indeed the wisdom of them is irrelevant—as long as those decisions
were not made with a discriminatory motive.” Alvarez v. Royal Atl. Developers,
610 F.3d 1253, 1266 (11th Cir. 2010) (quoting Chapman v. A1 Transp., 229 F.3d
1012, 1030 (11th Cir. 2000) (en banc)).
Cpt. Prince explained to Plaintiff that the reassignment to night shift was
temporary until new supervisors gained more experience.
(Doc. 30, Ex. L,
recording). Male officers were also reassigned to night shifts. (Id.). Cpt. Prince
also explained to Plaintiff that she and Officer Josh Thompkins could not be on the
same shift because they both had the most disciplinary problems. (Id.). It is
undisputed that Plaintiff left the RPD before the temporary reassignment actually
took effect. Based on this evidence, not only does Plaintiff fail to establish an
adverse action, she also cannot show that gender motivated the RPD to place her
on the night shift. Accordingly, Plaintiff’s claim of disparate treatment in this
instance is without merit.
45
As for discriminatory discipline, Plaintiff argues that “[s]he was docked pay
for sleeping on the job. Everyone slept on the job. There is no evidence of anyone
else being written up for sleeping on the job.” (Doc. 52 at 51). She also argues
that “[s]he was docked pay and terminated for violating the chain of command
when clearly she did not violations [sic] of the chain of command as her
complaints of discrimination were governed by a different policy.” (Id.).
The Court discussed both of these allegations above under Plaintiff’s
retaliation claim, using the burden-shifting framework of McDonnell Douglas.
Under a mixed-motive theory, Plaintiff has met her burden of establishing an
adverse employment action as she suffered a loss in pay with respect to both
disciplinary actions.
However, Plaintiff’s assertion that everyone slept on the job but was not
disciplined is inaccurate. Plaintiff identified one officer, Lt. Shackelford, who was
asleep at his desk, but she provides no evidence that Chief Hargett was aware of
the incident and failed to discipline him.
Furthermore, Plaintiff fails to
acknowledge that Lt. Shackelford was in the police station and not in his patrol car
at the time of the incident. See infra, at 20-21. As to the second allegation of
discipline, Plaintiff’s assertion that her complaints were governed by a “different”
policy --- and, therefore, she did not violate the chain of command --- is simply
46
erroneous. See supra, at 21-23. Accordingly, Plaintiff cannot show that her
gender was a motivating factor in Defendant’s decision to discipline her.
Plaintiff also raises the issue of being “treated different from similarly [sic]
males who had been promoted.” (Doc. 52 at 47). This different treatment includes
not being “moved from patrol to Sergeant in the system,” being placed on a one
year probation instead of six months,42 and not being given a GPS and access to
log in to correct reports. (Id. at 50). She also asserts that she was not allowed to
take extra breaks for a drink or snack, drive her children in her police vehicle,
permit her husband to bring her food in dispatch, and “given the full hours as male
officers were.” (Id. at 48).
Some of these incidents have been addressed above.
As to the other
incidents, Plaintiff has not shown that they rise to the level of an adverse
employment action, i.e., “a serious and material change in the terms, conditions, or
privileges of employment.” Howard, 605 F.3d at 1245 (citation omitted). Finally,
this evidence, even accepted as true, simply does not amount to “sufficient
evidence for a reasonable jury to conclude, by a preponderance of the evidence,
that [gender] was a motivating factor” (Quigg, 814 F.3d at 1239) in Defendant’s
decision to demote her. Accordingly, the Court grants summary judgment on these
claims.
42
Plaintiff was demoted after three months. (Doc. 39-22).
47
3.
Constructive Discharge
Plaintiff alleges a discriminatory discharge claim in violation of Title VII.
(Doc. 1, ¶¶ 146-51, No. 3:17-cv-1127).
As noted above under the Court’s
discussion of retaliation, Plaintiff cannot establish that she suffered an adverse
employment action because she voluntarily resigned from her position.
Accordingly, summary judgment is granted on this claim.
4.
Hostile Work Environment
Plaintiff alleges a hostile work environment claim on the basis of gender
discrimination under Title VII and 42 U.S.C. § 1983. (Doc. 1, ¶ 15, No. 3:16-cv1466; Doc. 1, ¶¶ 164-69, No. 3:17-cv-1127).
To establish a hostile work
environment claim, Plaintiff must show: (1) that she belongs to a protected group;
(2) that she was subjected to unwelcome harassment; (3) that the harassment was
based on her gender; (4) that the harassment was severe or pervasive enough to
alter the terms and conditions of her employment and create a hostile or abusive
working environment; and (5) that the employer is liable. Jones v. UPS Ground
Freight, 683 F.3d 1283, 1292 (11th Cir. 2012).43
A violation occurs when “the workplace is permeated with ‘discriminatory
intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter
43
In Cross v. State of Ala., State Dep’t. of Mental Health & Mental Retardation, the Eleventh
Circuit noted that “[w]hen section 1983 is used as a parallel remedy for violation of section 703
of Title VII, the elements of the two causes of action are the same.” 49 F.3d 1490, 1508 (11th
Cir. 1995) (citations omitted); see also Watkins v. Bowden, 105 F.3d 1344, 1355 (11th Cir. 1997)
(addressing elements of a hostile work environment claim under the Equal Protection Clause).
48
the conditions of the victim’s employment and create an abusive working
environment.’” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations
omitted). In evaluating the sufficiency of the severe or pervasive aspect of the
conduct, the Court must consider subjective and objective components. Mendoza
v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999). Four factors should be
considered in analyzing whether the conduct objectively altered the conditions of
the employee’s employment:
(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.
Id. Furthermore, “courts should examine the conduct in context, not as isolated
acts, and determine under the totality of the circumstances whether the harassing
conduct is sufficiently severe or pervasive to alter the terms or conditions of the
plaintiff's employment and create a hostile or abusive working environment.” Id.
Plaintiff devotes over two pages to the legal standard and case law to apply
to her hostile work environment claims. However, she states in a single sentence
that “[t]he defendant’s conduct argued in Subsections I, II, III and IV was so
severe and pervasive it materially altered [her] job.” (Doc. 52 at 56).
The totality
of the conduct identified by Plaintiff and discussed above was not sufficiently
severe or pervasive enough to alter her employment and create a hostile or abusive
workplace. See McQueen v. Ala. Dep’t. of Transp., No. 17-13405, 2019 WL
49
1773270, at *4 (11th Cir. Apr. 23, 2019) (finding that the “mistreatment
considered cumulatively was too sporadic and isolated to be considered
pervasive”). Also, there are no allegations of sexual harassment, and none of the
conduct she complains about was physically threatening or humiliating or
unreasonably interfering with her job performance. Plaintiff has failed to create a
genuine issue of material fact with regard to her hostile work environment claim.
C.
Fair Labor Standards Act Claim
Plaintiff alleges that Defendant violated her rights under the Fair Labor
Standards Act (FLSA) with respect to expressing milk and breastfeeding. (Doc.
1, ¶ 152-58, No. 3:17-cv-01127).
The FLSA states in pertinent part that
employers shall provide:
(A) a reasonable break time for an employee to express breast milk for
her nursing child for 1 year after the child’s birth each time such
employee has need to express the milk; and
(B) a place, other than a bathroom, that is shielded from view and free
from intrusion from coworkers and the public, which may be used by
an employee to express breast milk.
29 U.S.C. § 207(r)(1).
Plaintiff argues that she was not provided a private room to express breast
milk and had to go home. (Doc. 52 at 53-54). Defendant asserts that it did provide
Plaintiff with a private room--the break room. (Doc. 53 at 4). Plaintiff does not
dispute the fact that the break room had a door that could be locked from the inside
50
(Doc. 28-1 at 50; Doc. 28-5 at 20). Plaintiff argues that the room was not private
because Chief Hargett and Cpt. Price had a key to the break room. (Doc. 52 at
53).44 Plaintiff does not cite any authority for the proposition that supervisors
having keys to the provided place violates 29 U.S.C. § 207(r)(1). The Court finds
that the Chief and Captain’s possession of keys to the break room does not violate
Section 207(r)(1)(B).
Plaintiff acknowledges that she had the option to go home to express breast
milk. (Doc. 28-1 at 50-51). Plaintiff testified that she took two to three breaks
during each shift. (Id. at 50). Because her breaks exceeded 60 minutes, which was
her total allotted break time, she was counseled and required to make up any
excessive time at the end of her shift. (Doc. 28-1 at 82, 96; Doc. 28-5 at 21-22;
Doc. 39-55; Doc. 39-56).45 Plaintiff has not shown that her break time to express
milk was unreasonable under the FLSA. Accordingly, the Court finds that there is
44
Plaintiff asserts that the break room “was cleaned by inmates.” (Doc. 53 at 53). She does not
explain how this disrupts the privacy of the break room since the break room had a door which
could be locked from the inside. (Doc. 28-1 at 50; Doc. 28-5 at 20).
45
Plaintiff asserts that counseling and write ups for breaks exceeding 60 minutes were used in
disciplinary decisions, including her termination. (Doc. 52 at 54). Even if true, Plaintiff has not
shown how this is a “compensable loss” under the FLSA. See Hicks v. City of Tuscaloosa, No.
13-02063, 2015 WL 6123209, at *29 (N.D. Ala. Oct. 19, 2015) (granting summary judgment on
FLSA claim for lost pay and constructive discharge related to nursing breaks because plaintiff
was unable to show that this was a “compensable loss” under the FLSA).
51
no genuine issue of material fact as to Plaintiff’s FLSA claim, and summary
judgment is due to be granted.46
IV.
CONCLUSION
For the reasons discussed above, the Court GRANTS Defendant’s motion
for summary judgment with respect to Plaintiff’s Title VII retaliation claims. The
Court GRANTS Defendant’s motion with respect to Plaintiff’s Title VII and
Section 1983 gender discrimination claims. The Court GRANTS Defendant’s
motion with respect to Plaintiff’s FLSA claim.
DONE and ORDERED August 29, 2019.
_________________________________
LILES C. BURKE
UNITED STATES DISTRICT JUDGE
46
Because the Court finds that Plaintiff has not established a genuine issue of material fact as to
being offered a place and reasonable time to express breast milk, the Court need not address
Defendant’s argument that “the FLSA does not provide a private right of action under the
circumstances asserted in [Plaintiff’s] complaint.” (Doc. 53 at 4). See Miller v. Roche Sur. &
Cas. Co., Inc., 502 F. App’x 891, 893 (11th Cir. 2012) ([B]ecause [defendant] did not violate
[section 207(r)(1)], we need not decide the issue of damages.”).
52
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