Simpson v. State of Alabama Department of Human Resources et al

Filing 39

MEMORANDUM OPINION. Signed by Judge R David Proctor on 3/14/2014. (AVC)

FILED
2014 Mar-14 PM 03:19
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
SAMMY EDWARD SIMPSON, II,
Plaintiff,
v.
STATE OF ALABAMA DEPARTMENT
OF HUMAN RESOURCES, et al.,
Defendants.

}
}
}
}
}
}
}
}
}
}

Case No.: 7:12-CV-02467-RDP

MEMORANDUM OPINION
This case is before the court on Defendants’ Motion for Summary Judgment (Doc. #34),
filed on August 22, 2013. The Motion (Doc. #34) has been fully briefed (Docs. #37 & #38) and
is properly under submission. For the reasons stated below, the Motion (Doc. #34) is due to be
granted.
I.

Procedural History
Plaintiff Sammy Edward Simpson, II (“Plaintiff”) initiated this lawsuit on July 16, 2012

by filing a Complaint (Doc. #1) against Defendants Alabama Department of Human Resources
(“Alabama DHR”), St. Clair County Department of Human Resources (“St. Clair County
DHR”), Jefferson County Department of Human Resources (“Jefferson County DHR”), Marshall
County Department of Human Resources (“Marshall County DHR”), Nancy Buckner, William
Butch King, Vera Warrant, and Terri Coley. Defendants filed both an Answer (Doc. #7) and a
Motion to Dismiss (Doc. #8) on September 18, 2012.

On November 16, 2012, the court

published a Memorandum Opinion (Doc. #17) and an Order (Doc. #18), dismissing all of the
individual defendants and leaving Alabama DHR, St. Clair County DHR, Jefferson County

DHR, and Marshall County DHR as the remaining defendants. Defendants then filed a Motion
for Summary Judgment (Doc. #34) on August 22, 2013, after which Plaintiff filed a Response
(Doc. #37) and Defendants filed a Reply (Doc. #38). The Motion (Doc. #34) is now properly
under submission.
II.

Facts1
Plaintiff currently resides in Fort Payne, Alabama, but, until recently, lived on his

family’s 200-acre farm in Collinsville, Alabama. (Doc. #34, Ex. 5, Part 1 at 1, 27, 89). Plaintiff
is a college graduate and licensed social worker, but is currently unemployed and has been on
Social Security disability since 2006. (Id. at 26). Plaintiff has a long history of mental illness,
having been diagnosed, among other things, with manic bipolar disorder. (Id. at 48).
Plaintiff began his college education at Snead State Community College, from which he
received an Associate Degree in 2002. (Id. at 31-32; Doc. #34, Ex. 5, Part 2 at 18). Plaintiff then
matriculated to Jacksonville State University, where he majored in social work. (Doc. #34, Ex. 5,
Part 1 at 32-33). While at Jacksonville State, Plaintiff met the field requirement for his social
work degree by completing a three-month internship with Family Life Center, a private social
work practice. (Doc. #34, Ex. 5, Part 1 at 16-17; Ex. #34, Ex. 5, Part 2 at 23). In July 2004,
Plaintiff graduated from Jacksonville State University with a Bachelor of Social Work. (Doc.
#34, Ex. 5, Part 2 at 79). Thereafter, Plaintiff was employed as a social worker by Marshall
County DHR from August 2004 to December 2004. (Doc. #34, Ex. 5, Part 1 at 11-12). Plaintiff
resigned from the position after it came to light that he was dating a Marshall County DHR

1

The facts set out in this opinion are gleaned from the parties’ submissions of facts claimed to be
undisputed, their respective responses to those submissions, and the court’s own examination of the evidentiary
record. 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). These are the “facts” for summary
judgment purposes only. They may not be the actual facts that could be established through live testimony at trial.
See Cox v. Adm’r U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th Cir. 1994).

2

client, whom he had apparently first met during his aforementioned internship at Family Life
Center. (Id. at 17-19). After leaving Marshall County DHR, Plaintiff worked for approximately
six months (January 2005 through June 2005) as a social worker at Northport Health Services
Healthcare and Rehab (“NHS”), a nursing home in Crossville, Alabama. (Id. at 19-20; Doc. #34,
Ex. 5, Part 2 at 13). Plaintiff was fired from NHS for “moving a resident,” and has not been
employed as a social worker since that time. (Doc. #34, Ex. 5, Part 1 at 23-24). In fact, from
2006 to 2012, Plaintiff did not attend any interviews for positions in social work. (Doc. #34, Ex.
5, Part 1 at 63). However, after being fired from NHS, Plaintiff passed the Alabama social work
licensing examination, and he has maintained an active social work license since then. (Id. at 3536; Doc. #34, Ex. 5, Part 2 at 16-17).
Since his last job as a social worker in 2005, Plaintiff has pursued a number of lawsuits
against various entities in the field of social work. For instance, Plaintiff sued NHS in relation to
unpaid overtime, a suit that was eventually settled. (Id. at 21-22). Likewise, Plaintiff brought
suit against Alabama DHR and numerous county departments in November 2006, raising claims
based on the Rehabilitation Act, the Fair Labor Standards Act, Section 1983, and the Fourteenth
Amendment. (Id. at 70-71; Simpson v. State of Alabama Department of Human Resources, 501
Fed. Appx. 951, 953 n.1 (11th Cir. 2012) (describing Plaintiff’s 2006 lawsuit)).

And in

November 2010, Plaintiff sued many of those same entities, including Alabama DHR, Jefferson
County DHR, and Marshall County DHR, for violation of the anti-retaliation provision of the
Rehabilitation Act. (Doc. #34, Ex. 5, Part 1 at 95-96; Doc. #37, Ex. 20). Both the 2006 suit
(dismissal) and the 2010 suit (summary judgment) were resolved in favor of those Plaintiff sued.
Simpson, 501 Fed. Appx. at 953.

3

On June 28, 2012, Plaintiff interviewed for a social work position with two
representatives from St. Clair County DHR, Cherri Pilkington and Nicole Peoples. (Id. at 61;
Doc. #34, Ex. 1). Plaintiff received the interview, as did sixty-three other individuals, because
he was among those listed on the Certification of Eligibles Statewide Register that St. Clair
County DHR requested from the State of Alabama Personnel Department at the start of its job
search. (Doc. #34, Ex. 1 at 5). This was in keeping with St. Clair County DHR’s standard
practice, which involves the use of Certification of Eligibles Registers in every job search that it
conducts. (Id. at 6).

Indeed, as recently as January 2012, St. Clair County DHR used a

Certification of Eligibles Local Register to find a new social worker, ultimately settling on a
former St. Clair County DHR intern, Alvarez Kennedy. (Id.). At his interview, Plaintiff was
professional in both appearance and preparation, but “was not overly impressive” and, at the
conclusion of all the interviews, was not one of the “top three choices” for the job. (Id. at 5). St.
Clair County DHR eventually selected Amanda Johnson to fill the position. (Id. at 6). Primarily
in response to his unsuccessful interview, Plaintiff filed the present suit on July 16, 2012.
III.

Standard of Review
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The party asking for summary judgment always bears the initial responsibility of
informing the court of the basis for its motion and identifying those portions of the pleadings or
filings which it believes demonstrate the absence of a genuine issue of material fact. Celotex,
477 U.S. at 323. Once the moving party has met its burden, Rule 56(c) requires the non-moving

4

party to go beyond the pleadings and by her own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific facts showing that there is a genuine
issue for trial. See id. at 324.
The substantive law will identify which facts are material and which are irrelevant. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts about the facts
and all justifiable inferences are resolved in favor of the non-movant. See Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute 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. If
the evidence is merely colorable, or is not significantly probative, summary judgment may be
granted. See id. at 249.
If the moving party bears the burden of proof at trial, it can only meet its initial burden on
summary judgment by coming forward with positive evidence demonstrating the absence of a
genuine issue of material fact (i.e., facts that would entitle it to a directed verdict if not
controverted at trial). Fitzpatrick, 2 F.3d at 1115. Once the moving party makes such a showing,
the burden shifts to the nonmoving party to produce significant, probative evidence
demonstrating a genuine issue for trial.
If the moving party does not bear the burden of proof at trial, it can satisfy its initial
burden on summary judgment in either of two ways. First, the moving party may produce
affirmative evidence negating a material fact, thus demonstrating that the nonmoving party will
be unable to prove its case at trial. Once the moving party satisfies its burden using this method,
the nonmoving party must respond with positive evidence sufficient to resist a motion for
directed verdict at trial.

5

The second method by which the moving party who does not bear the burden of proof at
trial can satisfy its initial burden on summary judgment is to affirmatively show the absence of
evidence in the record to support a judgment for the nonmoving party on the issue in question.
This method requires more than a simple statement that the nonmoving party cannot meet its
burden at trial, but does not require evidence negating the nonmovant=s claim; it simply requires
the movant to show that there is an absence of evidence to support the nonmoving party=s case.
Fitzpatrick, 2 F.3d at 1115-16.
If the movant meets its initial burden by using this second method, the nonmoving party
may either rely on evidence in the record, overlooked or ignored by the movant, sufficient to
withstand a directed verdict, or the nonmoving party may come forward with additional evidence
that is sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary
deficiency. However, when responding, the nonmovant can no longer rest on mere allegations,
but must set forth evidence of specific facts. Lewis v. Casey, 518 U.S. 343, 358 (1996) (citing
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).
IV.

Discussion
After careful review of the Rule 56 record and the parties’ briefs, and for the reasons

stated below, the court concludes that Defendants’ motion should be granted.
A.

Overview of Defendants’ Arguments in Support of Summary Judgment

Plaintiff’s Complaint (Doc. #1) asserts two causes of action: 1) retaliation in violation of
the Rehabilitation Act; and 2) discrimination in violation of the Rehabilitation Act. 2 Although

2

As a result its pervasive lack of clarity and explicit pleading of a single count, Plaintiff’s Complaint (Doc.
#1) initially appears to assert only one cause of action (i.e., retaliation in violation of the Rehabilitation Act).
However, upon closer examination of the Complaint, it is evident that Plaintiff intended to assert claims for both
retaliation and discrimination under the Rehabilitation Act. (Doc. #1 at ¶ 42—“The plaintiff has not been hired by
the defendants because of his disability;” Id. at ¶ 44—“Defendants by its actions has intentionally, maliciously and
with reckless indifference Retaliated and discriminated against Simpson.”). Such a reading of the Complaint is

6

the claims largely arise out of Plaintiff’s failed attempt in June 2012 to secure a job with
Defendant St. Clair County DHR, Plaintiff is also pursuing the same causes of action against
Alabama DHR, Jefferson County DHR, and Marshall County DHR.
In their Motion for Summary Judgment (Doc. #34), Defendants seek judgment as to all of
Plaintiff’s claims. During the discovery process, Defendants developed a particularly detailed
factual record, which they have relied upon in presenting their summary judgment arguments. In
doing so, Defendants have pointed to undisputed facts in that record to demonstrate the tenuous,
conspiratorial nature of the claims made by Plaintiff against Defendants Alabama DHR,
Jefferson County DHR, and Marshall County DHR. (Doc. #34 at 10-15). Defendants have also
shown that Plaintiff’s claims against St. Clair County DHR, while perhaps slightly more viable
in theory, lack the Rule 56 factual support to survive summary judgment. Each of Defendants’
arguments are addressed below.
B.

Defendants Are Entitled to Summary Judgment on Plaintiff’s Retaliation
Claim

Plaintiff’s primary claim is for retaliation in violation of the Rehabilitation Act. (Doc. #1
at ¶¶ 1, 41, 44). The Rehabilitation Act generally prohibits any program or activity receiving
federal funds from discriminating against otherwise qualified individuals with a disability.
Mullins v. Crowell, 228 F.3d 1305, 1313 (11th Cir. 2000); see also 29 U.S.C. § 794(a). In regard
to retaliation, the Rehabilitation Act incorporates the anti-retaliation provision from the
Americans with Disabilities Act (“ADA”). See 29 U.S.C. § 794(d). The ADA=s anti-retaliation
provision provides that “[n]o person shall discriminate against any individual because such
individual has opposed any act or practice made unlawful by this chapter.” 42 U.S.C. § 12203(a).
This provision is similar to Title VII=s prohibition on retaliation. See Stewart v. Happy Herman=s
further confirmed by Plaintiff’s multiple references to a claim for discrimination in his Response to Defendants’
Motion for Summary Judgment (Doc. #37 at 11, 44).

7

Cheshire Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir. 1997). As a result, it is most appropriate
to evaluate Plaintiff=s Rehabilitation Act retaliation claim under the McDonnell-Douglas burdenshifting framework that is applied to Title VII retaliation claims. Id.; see also Ellis v. England,
432 F.3d 1321, 1323-24 (11th Cir. 2005). Under this statutory scheme, the plaintiff bears the
initial burden of establishing a prima facie case of retaliation, which requires a showing that: (1)
he engaged in statutorily protected expression; (2) he suffered an adverse employment action;
and (3) there was some causal relationship between the two events. Holifield v. Reno, 115 F.3d
1555, 1566 (11th Cir. 1997). “Once a plaintiff has established a prima facie case, the employer
then has an opportunity to articulate a legitimate, non-retaliatory reason for the challenged
employment action.” Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). If
the employer does so, the plaintiff is once again saddled with the burden, which requires him to
show by a preponderance of the evidence that the employer’s proffered reason is merely pretext
for prohibited, retaliatory behavior. Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir.
1998).
1.

Plaintiff Has Not Established a Prima Facie Case of Retaliation
Against Alabama DHR, Jefferson County DHR, or Marshall County
DHR

Defendants Alabama DHR, Jefferson County DHR, and Marshall County DHR are
entitled to summary judgment on Plaintiff’s retaliation claim, because Plaintiff is unable to carry
his initial burden of establishing a prima facie case of retaliation. Indeed, Plaintiff has made a
sufficient showing as to the first element (protected activity) of a prima facie case, but has failed
to demonstrate either the second (adverse employment action) or third (causal connection) prima
facie elements.

8

The exact theory behind Plaintiff’s retaliation claim against Alabama DHR, Jefferson
County DHR, and Marshall County DHR is not entirely clear, but its general contours are as
follows: as a result of his November 2010 lawsuit, Plaintiff was neither interviewed nor hired by
the aforementioned Defendants. The November 2010 lawsuit is undoubtedly a protected activity
that satisfies the first element of a prima facie case. Pipkins v. City of Temple Terrance, Fla., 267
F.3d 1197, 1201 (11th Cir. 2001) (“Statutorily protected expression includes . . . discriminationbased lawsuits”). However, it is at this point that the particulars of Plaintiff’s prima facie
narrative become murky: Plaintiff claims that Defendants subjected him to an “adverse
employment action” by not interviewing or hiring him (Doc. #1 at ¶¶ 39, 41), but he has failed to
articulate any Rule 56 factual basis for this claim. Indeed, the interview and hiring process for
state-employed social workers is very standardized and transparent,3 yet Plaintiff has offered
nothing but conclusory statements in support of the notion that Defendants deviated from normal
procedure. Plaintiff intimates that Defendants prevented him from being interviewed or hired by
(a) actively keeping his name off the state and local registers,4 and/or (b) not using the registers
in the hiring process,5 but he has also readily conceded that he has no evidence to support his
allegations. (Doc. #34, Ex. 5, Part 1 at 70-72, 77-80, 91).

3

Whenever a county department of human resources wants to hire a new social worker, it contacts the
Alabama State Personnel Department to obtain a list (commonly referred to as a “register”) of eligible candidates
(i.e., those persons who have met the State’s qualifications for the respective position and who have properly
registered their interest with the Alabama State Personnel Department), and then offers interviews to all of the listed
candidates. See, e.g., Doc. #34, Ex. 1 at 6 (“Every individual that I have hired at SCDHR has been from a
Certification of Eligibles Register for the position in which I was filling. I have offered interviews to all interested
candidates who are listed on the register for each position.”).
4

See, e.g., Doc. #38 at 33 (“As can be seen the defendants can orchestrate, manipulate, condone and
facilitate these registers . . . [If] State personnel would prevent even one African American from appearing on the
register what would stop SPD and DHR from preventing someone who sued their dept. three times and has a heavy
file on him at the source. These defendants are guilty just the same JCDHR prevented his name from appearing
because of his disability status and their view of him.”).
5

See, e.g., Doc. #1 at ¶ 31 (“The administrative decision maker’s [sic] . . . individually condoned in hiring
without a register.”).

9

In contrast, Defendants have presented substantial evidence that Plaintiff’s failure to be
interviewed or hired was the simple result of Plaintiff not being properly registered with the
Alabama State Personnel Department. (Doc. #34 at 12, 13, 15). To this end, Defendants have set
forth numerous affidavits and records demonstrating that Plaintiff was not listed on the relevant
registers during the applicable period. (Doc. #34 at Ex. 2-Ex. 4). Because Plaintiff is unable to
present any substantial evidence that Defendants took any steps or engaged in any activity (i.e.,
action) to frustrate or circumvent the standard interview/hiring process, his theory as to
Defendants’ alleged adverse action is fatally flawed. Indeed, his allegations of adverse action
require leaps of conspiratorial fancy in practice, which is at odds with the level of Rule 56
evidentiary support necessary to establish the prima facie elements at the summary judgment
stage.
Moreover, even if Defendants’ failure to interview or hire Plaintiff could be deemed an
adverse employment action that they (the Defendants) engaged in, Plaintiff’s claim fails for an
additional reason: he has failed to show a causal connection between the first and second
elements. “To establish a causal connection, a plaintiff must show that the decision-makers were
aware of the protected conduct and that the protected activity and the adverse action were not
wholly unrelated.” Gupta v. Fla. Bd of Regents, 212 F.3d 571, 590 (11th Cir. 2000). “[A]
plaintiff satisfies this element if he provides sufficient evidence that the decision-maker became
aware of the 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) (emphasis added). “It is not enough for the plaintiff to show that
someone in the organization knew of the protected expression; instead, the plaintiff must show
that the person taking the adverse action was aware of the protected expression.” Bass v. Board

10

of County Commissioners, Orange County, Fla., 256 F.3d 1095, 1119 (11th Cir. 2001) (emphasis
added).
In the present case, Plaintiff has failed to demonstrate a causal connection for prima facie
case purposes, as he has provided no evidence (and certainly no substantial evidence) that the
actual individuals who were the 2012 decision-makers at Alabama DHR, Jefferson County DHR,
or Marshall County DHR were even aware of his protected activity. To the contrary, Plaintiff
stated repeatedly at deposition that he had no evidence in this regard to support his claims against
Alabama DHR, Jefferson County DHR, and Marshall County DHR. (Doc. #34, Ex. 5, Part 1 at
70-72, 77-80, 91).
Finally, there is too large of a temporal gap between Plaintiff’s 2010 lawsuit and his 2012
application to create any inference of retaliation. Although a plaintiff can establish a causal
connection by showing “a close temporal proximity” between the time an employer becomes
aware of the protected activity and the time the adverse action occurs, Thomas v. Cooper
Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007), such proximity must be “very close.” Clark
County School District v. Breeden, 532 U.S. 268, 273 (2001). Here, more than a year and a half
passed between Plaintiff’s protected activity (November 2010) and the alleged adverse action
(June 2012), a period of time that is too lengthy to suggest causation. Drago v. Jenne, 453 F.3d
1301, 1308 (11th Cir. 2006) (holding that a three-month gap between protected activity and
adverse action was not sufficiently proximate to show causation); Wascura v. City of South
Miami, 257 F.3d 1238, 1248 (11th Cir. 2001) (concluding that, in light of evidence of legitimate
reasons for the employer’s action, a three-and-a-half-month temporal proximity was insufficient
to create a jury issue on causation); Sierminski v. Transouth Financial Corporation, 216 F.3d
945, 951 (11th Cir. 2000) (quoting approvingly the district court’s determination that a seventh-

11

month period was too attenuated, particularly where the record was “replete” with other reasons
for the adverse action other than the plaintiff’s protected activity). As such, Plaintiff has failed to
carry his initial burden of establishing a prima facie case of retaliation and Defendants Alabama
DHR, Jefferson County DHR, and Marshall County DHR are entitled to summary judgment on
Plaintiff’s retaliation claim.
2.

Even Assuming Arguendo That He Established a Prima Facie Case of
Retaliation Against Defendants Alabama DHR, Jefferson County
DHR, and Marshall County DHR, Plaintiff is Unable to Rebut Tthose
Defendants’ Articulated Basis for Not Interviewing Him

The court has already explained why Plaintiff has not established a prima facie case of
retaliation against Alabama DHR, Jefferson County DHR, or Marshall County DHR.

In

addition, the court notes that even if Plaintiff were able to establish a prima facie case of
retaliation, he has not set forth the Rule 56 evidence necessary to rebut those Defendants’
articulated explanations for not interviewing him.
Pursuant to the burden-shifting framework applied to retaliation claims under the
Rehabilitation Act, a defendant is required to put forth a non-retaliatory reason for the challenged
adverse action after the plaintiff establishes a prima facie case. Pennington, 261 F.3d at 1266.
These Defendants have each satisfied this burden here because they have said that,
notwithstanding what Plaintiff thought his status to be at the time, he was not interviewed
because he was not on the Certificate of Eligibles Register of eligible candidates (see supra at p.
9, n.3) maintained by the Alabama State Personnel Department. (Doc. #34 at 12, 13, 15).
Once a non-retaliatory explanation has been proffered by a defendant, the burden shifts
back to the plaintiff to show that the challenged adverse action was driven not by the proffered
reason, but rather by a retaliatory motive. Olmsted, 141 F.3d at 1460. Plaintiff has failed to meet
this burden, as he has offered absolutely no evidence (and certainly no substantial evidence) to
12

rebut Plaintiff’s non-retaliatory reasoning. As a result, these Defendants are entitled to summary
judgment for this reason, also.
3.

Plaintiff Has Not Established a Prima Facie Case of Retaliation
Against St. Clair County DHR

Defendant St. Clair County DHR is also entitled to summary judgment on Plaintiff’s
retaliation claim, as a result of Plaintiff’s prima facie deficiencies.
There is little doubt that Plaintiff has made a sufficient showing as to the first two
elements of a prima facie case for retaliation, i.e., protected activity and adverse employment
action. Indeed, Plaintiff’s November 2010 lawsuit constitutes protected activity for purposes of
a retaliation claim, Pipkins, 267 F.3d at 1201, and it seems clear that St. Clair County DHR’s
failure to hire Plaintiff after his June 2012 interview amounts to an adverse employment action.
Crawford v. Carroll, 529 F.3d 961, 974 (11th Cir. 2008) (holding that an adverse employment
action is something that “clearly might deter a reasonable employee from pursuing a pending
charge of discrimination or making a new one”). However, Plaintiff has not demonstrated a
causal connection between his protected activity and St. Clair County DHR’s adverse action,
dooming his attempt to meet the initial, prima facie burden.
As noted above, “[t]o establish a causal connection, a plaintiff must show that the
decision-makers were aware of the protected conduct and that the protected activity and the
adverse action were not wholly unrelated.” Gupta v. Fla. Bd of Regents, 212 F.3d 571, 590 (11th
Cir. 2000). “[A] plaintiff satisfies this element if he provides sufficient evidence that the
decision-maker became aware of the 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) (emphasis added). Here, Plaintiff has failed

13

to show that St. Clair County DHR’s decision-maker was aware of his protected activity (i.e., his
November 2010 lawsuit).
The relevant decision-maker in this instance was Cherri Pilkington, the Director of St.
Clair County DHR and the primary conductor of Plaintiff’s June 2012 interview. (Doc. #34, Ex.
1 at 2, 5). Not only has Plaintiff failed to present any evidence that Pilkington was aware of his
prior lawsuit, but he also testified to the contrary at deposition.6 In fact, in an affidavit submitted
in support of Defendants’ Motion for Summary Judgment, Pilkington testified that she was
unaware of Plaintiff’s protected activity. (Doc. #34, Ex. 1 at 5-6—“I had no knowledge of… Mr.
Simpson’s previous lawsuits, or protective [sic] activity, when I conducted the interview with
him on June 28, 2012.”). As such, Plaintiff has failed to impute to Defendant the sort of
awareness that is necessary to demonstrate a causal connection.
Likewise, Plaintiff cannot show a sufficiently close temporal proximity between his
protected activity and St. Clair County DHR’s adverse action, further frustrating his attempt to
establish a causal connection. Plaintiff’s unsuccessful, June 2012 interview was more than a year
and a half removed from his November 2010 lawsuit, resulting in a gap of time that far exceeds
the proximity needed for causation. See Drago, 453 F.3d at 1308 (holding that a three-month gap
between protected activity and adverse action was not sufficiently proximate to show causation);
Wascura, 257 F.3d at 1248 (concluding that, in light of evidence of legitimate reasons for the

6

Plaintiff’s Deposition:
Q:
A:
Q:
A:
...
A:

[D]o you have any evidence that Ms. Pilkington was aware—
Yeah.
—of your previous lawsuit?
I don’t think Ms. Pilkington was. No, I don’t.
Now, I don’t—I’m not accusing Cherri Pilkington of knowing that I had sued St. Clair
County.

Doc. #34, Ex. 5, Part 1 at 86-87.

14

employer’s action, a three-and-a-half-month temporal proximity was insufficient to create a jury
issue on causation); Sierminski, 216 F.3d at 951 (quoting approvingly the district court’s
determination that a seventh-month period was too attenuated, particularly where the record was
“replete” with other reasons for the adverse action other than the plaintiff’s protected activity).
Because Plaintiff is unable to show that Ms. Pilkington was aware of his protected activity or
that there was a close temporal proximity between his protected activity and Defendant’s adverse
action, he cannot demonstrate a causal connection and fails to carry his initial burden of
establishing a prima facie case of retaliation.
4.

Even Assuming Arguendo that He Established a Prima Facie Case,
Plaintiff is Unable to Rebut St. Clair County DHR’s Articulated Basis
for the Adverse Action

The court has already explained why Plaintiff has not established a prima facie case of
retaliation against St. Clair County DHR. In addition, the court notes that even if Plaintiff were
able to establish a prima facie case of retaliation, he has not set forth the evidence necessary to
rebut Defendant St. Clair County DHR’s articulated explanation for not hiring him.
Pursuant to the burden-shifting framework applied to retaliation claims under the
Rehabilitation Act, a defendant is required to put forth a non-retaliatory reason for the challenged
adverse action after the plaintiff establishes a prima facie case. Pennington, 261 F.3d at 1266.
Defendant St. Clair County DHR has satisfied that burden in the present case, asserting that
Plaintiff was not hired because there were other, more qualified candidates. (Doc. #34, Ex. 1 at 5,
7—Pilkington Affidavit—“Mr. Simpson was not overly impressive in his interview.

Mr.

Simpson was not one of my top three choices after completing all of the interviews for the
position . . . Ms. Johnson was selected to fill the position for the open Social Worker position
because I believed that she was more qualified for the position.”).

15

Once a non-retaliatory explanation has been proffered by a defendant, the burden shifts
back to the plaintiff to show that the challenged adverse action was driven not by the proffered
reason, but rather by a retaliatory motive. Olmsted, 141 F.3d at 1460. Plaintiff has failed to meet
this burden, as he has offered absolutely no evidence to rebut Plaintiff’s non-retaliatory
reasoning. In fact, Plaintiff’s deposition testimony (“I’m not accusing Cherri Pilkington of
knowing that I had sued St. Clair County”) precludes the possibility that Defendant’s failure to
hire him was retaliatory in nature. (Doc. #34, Ex. 5, Part 1 at 87). As a result, Defendant St.
Clair County DHR is due to be granted summary judgment on Plaintiff’s retaliation claim.
C.

Defendants Are Entitled to Summary Judgment on Plaintiff’s Discrimination
Claim

In addition to his retaliation claim, Plaintiff brings suit against Defendants for disability
discrimination in violation of the Rehabilitation Act. (Doc. #1 at ¶¶ 42, 44; Doc. #37 at 11, 44).
Due to serious deficiencies in Plaintiff’s claim, summary judgment is due to be granted to
Defendants.
“The Rehabilitation Act prohibits recipients of federal financial assistance from
discriminating against individuals with disabilities.” Garrett v. University of Alabama at
Birmingham Board of Trustees, 507 F.3d 1306, 1310 (11th Cir. 2007).

Because the

Rehabilitation Act shares a liability standard with the ADA, claims under the Rehabilitation Act
are evaluated in the same manner as those under the ADA, including the use of the McDonnellDouglas burden-shifting framework for claims that rely on circumstantial evidence. Ellis v.
England, 432 F.3d 1321, 1326 (11th Cir. 2005); Collado v. United States Postal Service Co., 419
F.3d 1143, 1149-50 (11th Cir. 2005). “To establish a prima facie case of discrimination under
the Act, an individual must show that (1) he has a disability; (2) he is otherwise qualified for the

16

position; and (3) he was subjected to unlawful discrimination as the result of his disability.”
Sutton v. Lader, 185 F.3d 1203, 1207 (11th Cir. 1999).
Assuming for purposes of summary judgment evaluation that Plaintiff satisfies the first
two elements of a prima facie case of discrimination,7 Plaintiff’s discrimination claim still fails
because of a complete absence from the Rule 56 record of any indication that Defendants
discriminated against Plaintiff on the basis of his alleged disability. As established above,
Plaintiff had little to no interaction with Defendants Alabama DHR, Jefferson County DHR, and
Marshall County DHR (e.g., he did not apply for a job or participate in an interview with these
entities), meaning that these Defendants did not have the opportunity to discriminate against
Plaintiff.

Likewise, Plaintiff has presented no evidence that his interview experience with

Defendant St. Clair County DHR was affected by discrimination. In fact, the only evidence in the
record that speaks to Plaintiff’s claim of discrimination is the affidavit of Ms. Pilkington, which
reveals that she was unaware of Plaintiff’s alleged disability. (Doc. #34, Ex. 1 at 6—“I had no
knowledge of Simpson’s alleged disability . . .”). Because Plaintiff has presented absolutely no
Rule 56 evidence of discrimination, he has failed to carry his initial burden of establishing a
prima facie case and Defendants are entitled to summary judgment.
V.

Conclusion
For the reasons stated above, Defendants’ Motion for Summary Judgment (Doc. #34) is

due to be granted. A separate order consistent with this memorandum opinion will be entered.

7

Because Defendants declined to challenge Plaintiff’s disability status during the briefing process, the
court considers Plaintiff disabled for purposes of summary judgment. Properly determining whether a plaintiff is
disabled within the meaning of the Rehabilitation Act requires a detailed, time-intensive evaluation, and, since
Plaintiff’s prima face case of discrimination fails on other grounds, the court finds it unnecessary to make such an
evaluation at this time.

17

DONE and ORDERED this March 14, 2014.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

18