Hill v. Perkins
ORDER granting Defendant's 28 Motion for Summary Judgment as set out. Signed by Judge Kristi K. DuBose on 4/22/2014. (cmj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
BOARD OF SCHOOL COMMISSIONERS )
OF MOBILE COUNTY, ALABAMA,
CIVIL ACTION NO. 12-00510-KD-N
This action is before the Court on the motion for summary judgment, brief in support of
the motion, suggested determinations of undisputed facts and conclusions of law, and evidentiary
material filed by defendant Board of School Commissioners of Mobile County, Alabama (the
Board) (docs. 28, 29), the response in opposition filed by plaintiff Zellina Hill (Hill) (doc. 31)
and the Board’s reply (doc. 32). Upon consideration, and for the reasons stated herein, the
Board’s motion is GRANTED.
On August 15, 2012, Hill filed a pro se complaint against Alfred Perkins alleging sexual
harassment, sex discrimination, and retaliation in violation of Title VII of the Civil Rights Act of
1964, as amended. (Doc. 1) Hill amended her complaint on March 18, 2013, to name the Board
as the sole defendant. (Doc. 14) The Board answered the complaint on April 25, 2013. (Doc. 19)
The Board denied Hill’s allegations and raised its affirmative defenses. Perkins was dismissed
on May 15, 2013. (Doc. 21) The Board has now filed its motion for summary judgment and
documents in support and Hill has filed her response.
II. Findings of Fact1
Hill was hired by the Board in 2002 as a custodian and worked in that capacity at LeFlore
High School during the 2010-2011 school year. Perkins was the Plant Manager/Plant Engineer
and supervised Hill’s work and the work of the other custodians, including R.L. Lewis. Perkins
had the authority to evaluate Hill, but her ultimate supervisor was Principal Alvin Dailey.
After a staff meeting in March 2010, Perkins asked Hill whether she had a sexual
relationship at a motel with Lewis because both had been absent from work the same day.
According to Hill, Perkins “stated all I could think about was you and him at a motel. If I knew
where the hotel was I would have gone to find you” and he “later asked ‘aren’t my lips big
enough? I don’t have enough money?’” (Doc. 31, p. 2,2 Doc. 29-3, p. 12-13, Hill Deposition)
Perkins did not touch her during that meeting nor had Perkins ever made any inappropriate
advances toward her physically. (Doc. 29-3, p. 14-15)
In August 2010, during a staff meeting and in front of Hill’s coworkers and a church
member, Perkins addressed her as “Mr. Lewis’ wife” said that Hill and Lewis acted like “lovers”.
The Court has made its determination of facts by “view[ing] the facts and draw[ing] all
reasonable inferences in the light most favorable to the nonmoving party.” Goodman v.
Kimbrough, 718 F.3d 1325, 1331 (11th Cir.2013).
In response to summary judgment, Hill has submitted a narrative of the events
supporting her complaint. (Doc. 31, 1-5) Hill has also included additional handwritten notes.
(Doc. 31 17-20, 22-23) The Court cannot ascertain whether Hill’s handwritten notes were made
in conjunction with her grievance or as personal notes regarding the incidents involving Perkins.
Giving the liberal construction due to pro se complaints, the Court construes the notes as
additional allegations of facts in support of her complaint. Although these notes are not in
affidavit form, the court will assume that Hill would testify consistent with these notes. See
Fed.R.Civ.P. 8(e) (“Pleadings must be construed so as to do justice.”); BoxerX v. Harris, 437
F.3d 1107, 1110 (11th Cir. 2006) (“pro se pleadings are held to a less stringent standard than
pleadings drafted by attorneys and will, therefore, be liberally construed.”) cert. denied, 549 U.S.
1323, 127 S.Ct. 1908 (2007) (quotations omitted); Allen v. East Alabama Medical Center, 2012
WL 5498011, *1 n.2 (M.D. Ala. Oct. 23, 2012) (construing all ten of pro se plaintiff’s written
statements as an amendment to his complaint).
(Doc. 29-3, p. 17) On August 11, 2010, Hill complained about the false accusation to Principal
Dailey. (Doc. 31, p. 2) On August 18, 2010, Hill complained to “Mr. Hack, HR representative
about Mr. Perkins’ continued untrue comments about an affair between Mr. Lewis and” Hill
(Doc. 31, p. 2)
On August 23, 2010, Perkins sent a memorandum to Hill stating: “This memo serves as
the first letter regarding some concerns with you not clocking out when leaving campus. On
August 19, 2010, you left campus without clocking our for lunch . . . By copy of this letter to
Mr. Dailey, I am requesting that a copy of this letter be place[d] in your personnel file.” The
memorandum indicates that a copy was sent to Principal Dailey, Beverly Hales in Human
Resources, and “Personnel File”. (Doc. 31, p. 15)3
On August 27, 2010, Perkins sent a memorandum to Hill stating “[o]n Thursday, August
26, 2010 you fail to show up for employees shift meeting.” The memorandum contained a “cc.”
to “Personnel File.” (Doc. 31, p. 13)
Hill has presented copies of several documents including Perkins’ memoranda and her
Grievance forms. Generally, documents such as these must be authenticated in order for
consideration at summary judgment. However, the Board has not objected to the authenticity of
these documents and it appears that they could be reduced to an admissible form, i.e.,
authentication by the appropriate records custodian. See Zukowski v. Foss Maritime Co., 2013
WL 1966001, *4 (S.D. Ala. May 10, 2013) (“However, even in the face of an objection to
reliance upon nonauthenticated records, there is authority to indicate that, at the summary
judgment stage, the court may rely upon non-authenticated records where it finds that those
records could be reduced to admissible evidence at trial.” (citing Pritchard v. Southern Co. Serv.,
92 F.3d 1130, 1135 (11th Cir.1996); McMillian v. Johnson, 88 F.3d 1573, 1584 (11th Cir.1996),
aff'd, 520 U.S. 781, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997); and Coker v. Tampa Port Authority,
962 F.Supp. 1462, 1467 (M.D.Fla.1997)); See Macuba v. Deboer, 193 F.3d 1316, 1323 (11th
Cir.1999) (“a district court may consider a hearsay statement in passing on a motion for
summary judgment if the statement could be ‘reduced to admissible evidence at trial’ or ‘reduced
to admissible form.’ ”).
On August 30, 2010, Perkins sent a memorandum to Hill stating “[o]n Friday, August 27,
2010 you fail to show up for employees staff meeting.” The memorandum contained a “cc.” to
“Personnel File.” (Doc. 31, p. 14)
Also on August 30, 2010, Hill responded to Perkins and Dailey regarding the August 23,
2010 memorandum. Hill explained that she had forgotten to punch out and that in the past, in
this circumstance, the practice was to write a note to the bookkeeper to correct the employee’s
time. Hill also contested Perkins’ implication that she did not take her job seriously and
expressed her feeling that “this type of implication, and this letter as a whole, is retaliation for
allegedly speaking with a representative of the Mobile County AEA”. Hill requested that the
memorandum be removed from all files, including her personnel file. (Doc. 31, p. 16)
Hill testified that after Perkins wrote her up, her relationship with the teachers changed.
She believed that she had a good relationship with the teachers, but “after this happened, people
just seemed like they started shying away.” (Doc. 29-3, p. 5)
On September 10, 2010, Hill, through her representative E. Beck, UniServ Director for
the Alabama Education Association, filed a Level 1 Grievance with Principal Dailey. The
Grievance stated as follows:
That the Plant Engineer at LeFlore HS has violated, misinterpreted or misapplied
policy(ies) of the Mobile County Board of School Commissioners. The issue in
question is whether the Plant Engineer has established a hostile work environment
for Mrs. Hill by alleging that she and another custodian were having an
(Doc. 31, p. 10; Doc. 14, p. 11 (letter referencing Level 1 Grievance)) The “proposed
resolution” was “[t]hat the Mobile County Public School System (MCPSS) reprimand the Plant
Manager and instruct him to adhere to and follow its policies and procedures.” (Doc. 31, p. 10)
In mid-September, Hill was admitted to Forrest General Hospital in Hattiesburg,
Mississippi. (Doc. 14, p. 10; Doc. 31, p. 25). The Return to Work Release indicates that Hill was
hospitalized from September 14, 2010 through September 18, 2010, and was released to return to
work on September 21, 2010. (Id.) Hill alleges that she was hospitalized for mental health
treatment because Perkins’ actions “put” her “into a state of depression” and that the Board paid
her hospital bill. (Doc. 14, p. 2; Doc. 31, p. 5)
On September 24, 2010, Hill filed an Amended Charge of Discrimination with the Equal
Employment Opportunity Commission wherein she alleged as follows:
I am a Black female. I was hired by the Respondent on October 1, 2002 as a
Custodian. Since March 2010 Alfred Perkins (Plant Engineer/Supervisor) has
sexually harassed me. I complained to management but no action has been taken.
the harassment continues.
After a meeting in March 2010, Mr. Perkins asked my coworkers to leave the
room because he wanted to speak to me. He asked if I was having a sexual
relationship at a motel with R. L. Lewis because we had been absent the same
day- He stated "all I could think about was you and him at a hotel together. If I
knew where the hotel was l would have gone to find you.' He later asked, “aren’t
my lips big enough?”
In August 2010, during a school meeting Mr. Perkins asked Mr. Lewis if we were
having an affair. He referred to us as husband and wife. This accusation is false.
On August 11, 2010, I complained to Alvin Dailey, Principal, and he told me to
pray about it. On August 18, 2010, I complained to Mr. Hack, HR
Representative, about Mr. Perkin’s continued untrue comments about an affair
between Mr. Lewis and me. No action was taken. I filed a grievance on
September 2, 2010. To date no action has been taken.
(Doc. 31, p. 8; Doc. 1, p. 4)
On October 20, 2010, Hill requested a Level II Grievance hearing. Hill explained that no
response to the Level I grievance filed September 8, 20104 had been received. (Doc. 31, p. 11)
At some time after the incidents occurred, Hill asked Principal Dailey to help her transfer
Hill submitted a copy of a Grievance dated September 10, 2010. (Doc. 31, p. 10) This
date may be incorrect.
to another school. (Doc. 31, p. 19) At some time in October or November 2010, Principal Dailey
offered Hill a transfer to Davidson High School. Hill refused the transfer because Davidson was
too far from her home. (Doc. 29-3, p. 30-33)
A Mobile County School System Employee Relations fax, dated November 3, 2010,
stated that “Mr. Perkins has been counseled and received the appropriate training regarding
harassment.” (Doc. 31, p. 24)
On December 1, 2010, Hill filed a petition for a Level III Grievance review to Dr. Roy
Nichols, Superintendent of the Mobile County Public School System. (Doc. 31, p. 12) In the
petition, Hill noted that she had not received any response to her Level I Grievance and that no
Level II appeal hearing was scheduled. (Id.)
In a note dated December 10, 2010, Hill wrote as follows:
I was told to go [to] the field house at 3:00 but before 3:00 there were other area
that could be clean. I began clean, lost track of time. I was cleaning, when Mr.
Perkins walk up with an attitude, would not give me a chance to say a word. He
was shouting and ranting uncontrollable. Just irate, so loud, that it drew attention
of other teachers. This type behavior is unacceptable. (sic)
(Doc. 31, p. 17)
Hill testified that Perkins gave her a good evaluation for the 2009 - 2010 school year and
recommended her continued employment. (Doc. 29-3, p. 28)
In a noted dated February 11, 2011, Hill wrote as follows:
Mr. Perkins showed me how he wanted the units clean, he followed us room to
room only to harass. I went to one room, knowing he was following. I clean it
twice he call me back to the same room telling me it was not clean. I told him he
was not going to keep calling me back for every room slowing me down I went to
speak with Mr. Daily. He left but return again. (sic)
(Doc. 14, p. 9)
In a note dated May 6, 2011, Hill wrote that during the staff meeting that day, Perkins
expressed concern about work that was not done overnight and advised the staff to work as a
team. Hill stated that she did her job but Perkins said that was not enough. Hill then told Perkins
that they needed to speak with Principal Dailey and she left the meeting. (Doc. 31, p. 8) Hill then
went to Principal Dailey’s office to complain about Perkins. (Id.) After she left Dailey’s office,
Hill encountered Perkins.
Hill described her encounter with Perkins as follows:
[Perkins] waited for me to reach him and ask what was I saying I told him I was
not talking to him. he then followed me yelling as if he was going to grab me5 I
told him to get out of my face twice he followed me out the door still yelling I
told him I was going to tell my husband. I went to tell Mr. Dailey. to tell him to
keep out of my face. Mr. Perkins said he was go to call the police and I told him
(Doc. 31, p. 18-19)6
In a noted dated May 6, 2011, Hill wrote that after she went to Principal Dailey’s office,
he asked Hill to go home. (Doc. 31, p. 20)
On May 9, 2011, Perkins wrote a memorandum to Hill regarding complaints about the
thoroughness of cleaning her assigned areas and her “continuous behavior problem.” The
memorandum indicates that a copy was sent to Principal Dailey, Bryan Hack in Human
Resources, and “Personnel File.” (Doc. 31, p. 21)
In a note dated May 11, 2011, 7 Hill wrote as follows:
I did not attend the meeting. Waited for Mr. Perkins to leave campus. He came
where we were, I saw him and walked off. He call me and I told him that I would
At deposition, Hill testified that Perkins had grabbed her during this confrontation.
(Doc. 29-3, p. 8)
There is no evidence that Perkins or Hill called the police.
This statement did not contain the year, but since Hill was at Chickasaw Magnet in
2012, the Court presumes the statement was written May 11, 2011.
get the information for co-worker. (sic)
(Doc. 14, p. 8)
In a note dated May 12, 2011, Hill wrote as follows:
At this time I’am going to put a restranting order on him to stay away. He was
reprimand to adhere and to follow policies and procedures. He have not followed
them at all. I’ve all ready told Human Resources about his scary behavior. (sic)
(Doc. 31, p. 23)
Hill testified that generally when Perkins “got mad, everybody would catch it” and that
“he would make it tough” for all custodians male and female. However, after she reported
Perkins “it got worse” and he told her coworkers that Hill and Lewis were the “problems.” (Doc.
29-3, p. 16, 35-36)
Hill was never suspended or demoted and continues to work for the school system. (Doc.
29-3, p. 6-7) In the summer of 2011, Hill transferred to Chickasaw Magnet School for the 20112012 school year. She has not had any problems and has worked there for almost three years.
(Doc. 29-3, p. 7, 19)
III. Conclusions of Law
A. Summary judgment standard
Summary judgment should be granted “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). If a party raises the assertion “that a fact cannot be or is genuinely disputed”, the
(A) cit[e] 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; or
(B) show that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.
Fed. R. Civ. P. 56(c)(1)(A)(B).
The Board, as the party seeking summary judgment bears “the initial burden to show the
district court, by reference to materials on file, that there are no genuine issues of material fact
that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
The party seeking summary judgment “always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Clark, 929
F.2d at 608 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986)).
Once the Board has satisfied its responsibility, the burden shifts to Hill, as the nonmovant, to show the existence of a genuine issue of material fact. Id. “In reviewing whether the
nonmoving party has met its burden, the court must stop short of weighing the evidence and
making credibility determination of the truth of the matter. Instead, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Tipton v.
Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir. 1992) (citing Anderson v. Liberty Lobby,
477 U.S. 242, 255, 106 S. Ct. 2505 (1986)); Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-159,
90 S. Ct. 1598, 1608-1609 (1970). However, “[a] moving party is entitled to summary judgment
if the nonmoving party has ‘failed to make a sufficient showing on an essential element of her
case with respect to which she has the burden of proof.’” In re Walker, 48 F. 3d 1161, 1163 (11th
Cir. 1995) (quoting Celotex Corp., 477 U.S. at 323, 106 S. Ct. at 2552). Overall, the court must
“resolve all issues of material fact in favor of the [non-movant], and then determine the legal
question of whether the [movant] is entitled to judgment as a matter of law under that version of
the facts.” McDowell v. Brown, 392 F.3d 1283, 1288 (11th Cir. 2004) (citing Durruthy v. Pastor,
351 F.3d 1080, 1084 (11th Cir. 2003)).
However, the mere existence of any factual dispute will not automatically necessitate
denial of a motion for summary judgment; rather, only factual disputes that are material preclude
entry of summary judgment. Lofton v. Secretary of Dept. of Children and Family Services, 358
F.3d 804, 809 (11th Cir. 2004). “An issue of fact is material if it is a legal element of the claim
under the applicable substantive law which might affect the outcome of the case. It is genuine if
the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.”
Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 807 (11th Cir. 2010) (citation omitted).
A. Exhaustion of administrative remedies
Hill filed her complaint on August 15, 2012. (Doc. 1) However, Hill did not provide the
Court with a copy of a right to sue letter from the EEOC to establish exhaustion of her
administrative remedies before filing suit or that she filed suit within ninety (90) days of receipt
of her right to sue letter. Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir. 2001)
(“Before a potential plaintiff may sue for discrimination under Title VII, she must first exhaust
her administrative remedies.”) (citing Crawford v. Babbitt, 186 F.3d 1322, 1326 (11th
However, “while the exhaustion requirement is mandatory, it is not a jurisdictional
prerequisite and so is subject to certain equitable remedies, including tolling, estoppel, and
waiver.” Tarmas v. Mabus, 2010 WL 3746636, *4 (M.D. Fla. Sept. 21, 2010) (citing Zipes v.
Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) and
“explaining in context of a Title VII action that failure to exhaust administrative remedies is not
jurisdictional prerequisite to filing suit in federal court”). Also, “receipt of a right-to-sue letter is
not a jurisdictional prerequisite to suit, but rather, is a statutory precondition which is subject to
equitable modification.” Wilkerson v. H&S, Inc. 366 Fed. Appx. 49, 51 (11th Cir. 2010) (citing
Forehand v. Fla. State Hosp. at Chattahoochee, 89 F.3d 1562, 1569-70 (11th Cir.1996) (receipt
of a right to sue letter is subject to equitable modification) and Zipes, 455 U.S. at 398, 102 S.Ct.
at 1135; see also Tie Qian v. Secretary, Dept. of Veterans Affairs, 432 Fed. Appx. 808, 810 (11th
Cir. 2011) (“A plaintiff in a Title VII action is required to file suit within 90 days after receiving
a ‘right-to-sue letter,’ although this is not a jurisdictional prerequisite, and a defendant must
assert the failure to file suit within 90 days as a defense. “) (citations omitted).
In the answer to the complaint, the Board raised the affirmative defense of statute of
limitation because “no charge of discrimination, naming the Board . . . as a Respondent, was
filed with the [EEOC] within One Hundred and Eighty (180) days of any alleged discriminatory
act.” and that “[n]o civil action was filed within ninety (90) days of [Hill’s] receipt of the Right
to Sue letter naming the Board . . . as a Defendant.” (Doc. 19, p. 2) Hill’s Amended EEOC
charge named Perkins and “Mobile County Public Schools” as the entities that she believed
discriminated against her. (Doc. 31, p. 8) However, the Board did not raise this affirmative
defense in either a motion to dismiss or in the motion for summary judgment. Thus, the Court
finds that the Board has waived its affirmative defense of statute of limitations and its affirmative
defense of failure to exhaust administrative remedies on basis that the Board was not named in
the amended EEOC charge. Cf. Tarmas, 2010 WL 3746636, at *5 (finding that the Navy asserted
the affirmative defense of failure to exhaust administrative remedies in its answer and “reiterated
this in its summary judgment motion as grounds for dismissal of the earlier claims”, and
therefore, had “not waived its right to assert exhaustion.”)
B. Hostile environment sexual harassment
Hill alleges Perkins’ sexually harassed her in March 2010 and made sexual comments
about her in August 2010. On motion for summary judgment, the Board argues that Perkins’
comments to Hill, taken in the light most favorable to her, do not constitute sexual harassment
that is sufficiently severe and pervasive to alter the conditions of Hill’s employment and create
an abusive working environment.
The Board, as Hill’s employer may be vicariously liable to her when the hostile
environment has been created by a Perkins as a supervisor “with immediate (or successively
higher)” authority over Hill. Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275,
2292–93 (1998). In Faragher and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), the
Supreme Court clarified that there are two types of sexual harassment actionable under Title VII.
Bryant v. School Bd. of Miami Dade County, 142 Fed.Appx. 382, 383-384 (11th Cir. 2005). If a
benefit of employment is connected to a demand for sexual favors, the employer may be liable
for sexual discrimination under Title VII if the employee suffers a tangible employment action as
a result of refusing the demand. Bryant, 142 Fed.Appx. at 383-384 (citing Ellerth, 524 U.S. at
753-754, and dispensing with the former “quid pro quo” description). If that is not the case, then
the employee may have an actionable sexual harassment claim if the employee establishes that
the conduct is so severe or pervasive that it alters the terms and conditions of the employment.
In other words, creates a hostile work environment. Bryant, 142 Fed. Appx. at 384.
Hill alleged that she was both “sexually harassed” and “discriminated” against (doc.1).
However, Hill has not presented any evidence that she suffered a tangible employment action as
defined by the Supreme Court: “a significant hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing significant change in benefits.”
Ellerth, 524 U.S. at 753-54, 118 S.Ct. at 2265; Bryant, 142 Fed. Appx. at 384. Hill testified that
she was never suspended or demoted and was still employed with the System. She also testified
that Perkins gave her a good evaluation for the 2009 – 2010 school year and that Principal
Perkins offered her a transfer to another school but she refused because the school was too far
from her home. Therefore, since no tangible employment action occurred, the Court will
evaluate the complaint as a hostile work environment claim.
In that regard, “Title VII prohibits employers from sexually harassing employees and
thereby creating a hostile work environment. Arafat v. School Bd. of Broward County, - - - Fed.
Appx. - - -. 2013 WL 6244735, 1 (11th Cir. 2013) (citing Reeves v. C.H. Robinson Worldwide,
Inc., 594 F.3d 798, 807 (11th Cir.2010) (en banc)). To sufficiently plead her prima facie case,
Hill “must allege that (1) she belongs to a protected group, (2) she has been subject to
unwelcome harassment, (3) the harassment was based on her gender, (4) the harassment was
sufficiently severe or pervasive to alter the terms and conditions of employment and create a
discriminatorily abusive working environment, and (5) there is a basis for holding the employer
liable.” Arafat, 2013 WL 6244735, at*1 (citing Mendoza v. Borden, Inc., 195 F.3d 1238, 1245
(11th Cir.1999) (en banc)). “[T]he evidence of harassment is considered both cumulatively and
in the totality of the circumstances.” Reeves, 594 F. 3d at 808. Also, “[e]ither severity or
pervasiveness is sufficient to establish a violation of Title VII.” Id. (italics in original). “In
evaluating allegedly discriminatory conduct,” the district court considers “its ‘frequency ...; its
severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work performance.’” Id., at 808-809
Additionally, Hill must prove that her “environment was both subjectively and
objectively hostile.” Id., at 809. In that regard Hill must “‘subjectively perceive’ the harassment
as sufficiently severe and pervasive to alter the terms or conditions of employment, and this
subjective perception must be objectively reasonable.” Id. (citation omitted). “[T]he objective
severity of harassment should be judged from the perspective of a reasonable person in the
plaintiff's position, considering ‘all the circumstances.’ ” Id. (citation omitted).
There is no dispute of fact that Hill is a member of protected group, was subject to
unwelcome harassment, and that the harassment was based on her gender. Arafat, 2013 WL
6244735, at *1. However, viewing the allegations in the light most favorable to Hill, the Court
finds that she is unable to establish the fourth element of her prima facie case, that the sexual
“harassment was sufficiently severe or pervasive to alter the terms and conditions of employment
and create a discriminatorily abusive working environment.” Id.
As to Hill’s subjective perception, Hill argues that she was so depressed by Perkins’
behavior that she sought mental health treatment. (Doc. 31, p. 50) However, “a plaintiff's
subjective feelings and personal reactions are not the complete measure of whether conduct is of
a nature that it interferes with job performance. If it were, the most unreasonably hypersensitive
employee would be entitled to more protection than a reasonable employee, and the standard
would not have an objective component.” Gupta v. Florida Bd. of Regents, 212 F.3d 571,
586 (11th Cir. 2000) overruled on other grounds by Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53 (2006)).
There are only two instances that could even arguably constitute conduct of a sexually
harassing nature: the comments of Perkins in March 2010 and possible the comments of Perkins
of August 2010. See supra. Judging the objective severity of these incidents from the perspective
of a reasonable person in Hill’s position, and considering all the circumstances, the Court finds
that Perkins’ conduct was not severe enough on any one occasion or pervasive enough to
establish Hill’s prima facie case for hostile work environment based on sex. See Gupta, 212 F.
3d at 585 (finding insufficient that Gupta’s supervisor, over a period of six or seven months,
called Gupta repeatedly at home, repeatedly asked her to lunch, stared at her twice,
complimented her appearance once, touched her ring and bracelet once, touched the hem of her
dress once, and placed his hand on her knee once). Title VII is not a “federal civility code”
Mendoza, 195 F. 3d at 1245, and does not create liability for “the ordinary tribulations of the
workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional
teasing.” Faragher, 524 U.S. at 788. Therefore, the Board is entitled to summary judgment as to
Title VII's anti-retaliation provision prohibits the Board from retaliating against Hill
“because [s]he has opposed any practice made an unlawful employment practice by this
subchapter, or because [s]he has made a charge, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e–3(a).
Because Hill’s retaliation claim is based on circumstantial evidence, she may rely on the
“burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 93 S. Ct. 1817
(1973)” to prove her case. Brown v. Ala. Dep’t of Transportation, 597 F. 3d 1160, 1181 (11th
Cir. 2010); Reeve v. Secretary, Dept. of Homeland Sec., 524 Fed. Appx. 779, 781 n.2 (11th Cir.
2013). Alternatively, she may present “circumstantial evidence that creates a triable issue
concerning [the Board’s] discriminatory intent.” Edmond v. University of Miami, 441 Fed. Appx.
721, 723 (11th Cir. 2011) (citing Smith v. Lockheed–Martin Corp., 644 F.3d 1321, 1325 (11th
Cir.2011) (stating that “the McDonnell Douglas framework is not, and never was intended to be,
the sine qua non for a plaintiff to survive a summary judgment motion in an employment
In order to establish a prima facie case of retaliation under Title VII, Hill must show “that
(1) she engaged in statutorily protected activity, (2) she suffered a materially adverse
employment action, and (3) there is a causal relationship between the two events.” Peters v.
HealthSouth of Dothan, Inc., 2013 WL 5567734, 3 (11th Cir. 2013) (citation omitted).
There is no dispute of fact that Hill engaged in a statutorily protected activity. Hill
complained to Principal Dailey and to Mr. Hack in Human Resources in August 2010, filed a
Grievance with Principal Dailey against Perkins in September 2010, and filed a charge with the
EEOC on September 24, 2010. See Walton-Horton v. Hyundai of Alabama, 402 Fed. Appx. 405,
408 (11th Cir. 2010) (“Statutorily protected expression includes internal complaints of
discrimination to superiors, complaints lodged with the Equal Employment Opportunity
Commission, and discrimination-based lawsuits.”); Tarmas v. Sec'y of Navy, 433 Fed. Appx.
754, 762 (11th Cir. 2011) (“There is no dispute that the filing of a claim with the EEOC is a
‘statutorily protected activity.’”)
As to the second element, in the context of a claim of Title VII retaliation, a “materially
adverse action” means one that “might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Crawford v. Carroll, 529 F. 3d 961, 973-974 (11th Cir.
2008) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 2415
(2006)); Rodriguez v. Secretary, U.S. Dept. of Homeland Sec., 518 Fed. Appx. 653, 655 (11th
Cir. 2013). Thus, the “materiality of the alleged adverse action is judged by an objective
standard.” Foshee v. Ascension Health-IS, Inc., 384 Fed. Appx. 890, 892 (11th Cir. 2010).
The Board argues that Hill was not subject to a materially adverse employment action.
The Board points out that Hill was not suspended or demoted,8 but instead received satisfactory
evaluations from Perkins, was transferred to another school at her request, and is still employed
with the school system.
Hill bases her allegation of a materially adverse employment action on the fact that
Perkins started “writing” her up after she complained. In support, Hill provided three
memoranda written by Perkins to Principal Dailey in late August 2010 that set forth certain
deficiencies in Hill’s work performance. The memoranda were written shortly after Hill
complained to Principal Dailey on August 11, 2010 and complained to Mr. Hack in Human
Resources on August 18, 2010, about Perkins’ continued accusations of an affair between Hill
and Lewis. (Doc. 31, p. 13-15) Hill also provided another memorandum Perkins wrote to
Principal Dailey on May 9, 2011, regarding complaints about Hill’s work and her “continuous
behavior problem.” This memorandum followed a verbal confrontation between Hill and
Perkins during and following a May 6, 2011 staff meeting. Both went to Principal Dailey to
complain about the other.
All of the memoranda reflect that a copy was sent to Principal Dailey, a Human
Resources person, and Hill’s “Personnel File.” (Doc. 31, p. 13-15, 21) On one occasion, Hill
objected to placement of one of the memoranda in her personnel file (Doc. 31, p. 16) but there is
no evidence before the Court as to whether these documents actually became a part of her
Judging the materiality of Perkins’ actions by an objective standard, the Court finds that
Hill has failed to meet her burden to establish a materially adverse action on the part of the Board
and therefore, has failed to make a prima facie case of retaliation. The memoranda to Principal
Hill testified that she was not suspended or demoted (Doc. 29-3, p. 6)
Dailey, Perkins’ scrutiny of Hill’s work, and the verbal confrontations between Hill and Perkins
represent the sort of “petty slights, minor annoyances, and simple lack of good manners” that
objectively fail to constitute action that would dissuade a reasonable worker from making or
supporting a charge of discrimination. Burlington Northern, 548 U.S. at 68, 126 S. Ct. at 2415
(“An employee's decision to report discriminatory behavior cannot immunize that employee
from those petty slights or minor annoyances that often take place at work and that all employees
experience.”). In sum, it appears to be bickering between Perkins’ and Hill that had no adverse
effect on Hill.9
Specifically, even assuming that Perkins’ memoranda to Principal Dailey were not
removed from Hill’s personnel file, she has not alleged any affect upon her employment that
would dissuade a reasonable person from engaging in protected activity. Cox v. City of Tampa,
418 Fed. Appx. 845, 847 (11th Cir. 2011) (plaintiff “failed to establish that the lower score on
her evaluation, which her supervisor testified was ‘excellent,’ affected the terms or conditions of
her employment in any manner and would have dissuaded a reasonable person from filing a
complaint.”); see Spencer v. City of Hollywood, Fla., 2009 WL 980274 (S.D. Fla. Apr. 10, 2009)
(“there is no indication that this was a type of reprimand that would dissuade a reasonable
worker from making or supporting a charge of discrimination. Further, Plaintiff has put forth no
argument and no evidence that the [written] reprimand itself constituted a tangible employment
action resulting in a significant change in Plaintiff's employment status.”); Penn v. USF Holland,
Inc., 770 F.Supp.2d 1211, 1239 (N.D. Ala. 2010) (The written warning letters would not
dissuade a reasonable worker from making a charge of discrimination, and they did not dissuade
Also, Hill did not deny that she engaged in the conduct about which Perkins wrote the
memoranda to Principal Dailey, i.e., that she failed to attend staff meetings or failed to clock out.
Penn as he continued to file grievances for many of the warning letters he received from
Holland.”) (citing Bush v. Regis Corp., 257 Fed. Appx. 219, 222 (11th Cir. 2007) (finding
warning letters, among other things, insufficient to establish adverse employment action under
newly articulated Burlington standard)); Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1241
(11th Cir.2001) (“criticisms of an employee's job performance-written or oral-that do not lead to
tangible job consequences will rarely form a permissible predicate for a Title VII suit”); Cf.
Kurtts v. Chiropractic Strategies Group, Inc., 481 Fed. Appx. 462, 467-468 (11th Cir. 2012) (“A
jury crediting Kurtts's account could find that Kurtts complained about the harassment, was
immediately told that it was uncertain whether any action would be taken, and that she should
instead consider taking her last paycheck. A reasonable jury could conclude that CSG's response
‘might deter a reasonable employee’ from lodging a complaint about harassment.”) (citation
Therefore, the Board is entitled to summary judgment as to this claim.
D. Retaliatory hostile work environment
In Gowski v. Peake, 682 F.3d 1299, 1312 (11th Cir. 2012), the Eleventh Circuit joined its
sister circuits and recognized a cause of action for retaliatory hostile work environment. The
Eleventh Circuit explained that “[t]o establish a hostile work environment claim under Title VII,
the plaintiff must show that ‘the workplace is permeated with discriminatory intimidation,
ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's
employment and create an abusive working environment.’” Gowski, 682 F. 3d at 1311(citing
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) and
Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir.2002)). The Eleventh Circuit
then examined whether the defendants subjected the plaintiffs “to a hostile work environment in
retaliation for their EEO activity” and looked to whether “the actions complained of were
sufficiently severe or pervasive to alter the terms and conditions of employment, thus
constituting an adverse employment action.” Id. at 1312. The circuit court stated as follows:
The requirement that the harassment be “severe or pervasive” contains an
objective and a subjective component. Miller, 277 F.3d at 1276. “Thus, to be
actionable, this behavior must result in both an environment that a reasonable
person would find hostile or abusive and an environment that the victim
subjectively perceive[s] ... to be abusive.” Id. (internal quotation marks omitted).
In evaluating the objective severity of the harassment, this court looks at the
totality of the circumstances and considers, among other things: “(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. “[W]hether an environment is ‘hostile’ or ‘abusive’ can be
determined only by looking at all the circumstances.” Harris, 510 U.S. at 23, 114
Discrete acts cannot alone form the basis of a hostile work environment claim.
See Davis v. Coca–Cola Bottling Co. Consol., 516 F.3d 955, 970 (11th Cir. 2008)
(emphasis added); see also McCann v. Tillman, 526 F.3d 1370, 1378 (11th Cir.
2008) (as opposed to “[d]iscrete acts such as termination, failure to promote,
denial of transfer, or refusal to hire,” a hostile work environment claim addresses
acts “different in kind” whose “very nature involves repeated conduct,” such as “
‘discriminatory intimidation, ridicule, and insult.’ ” (quoting Nat'l R.R. Passenger
Corp., 536 U.S. at 117, 122 S.Ct. 2061)). But the jury could consider discrete acts
as part of a hostile work environment claim. See, e.g., Nat'l R.R. Passenger Corp.,
536 U.S. at 117, 122 S.Ct. 2061 (a hostile work environment claim depends on “a
series of separate acts that collectively constitute one ‘unlawful employment
practice.’ ” (internal citation omitted)); see also Chambless v. Louisiana–Pacific
Corp., 481 F.3d 1345, 1349–50 (11th Cir. 2007) (discussing, for timeliness
purposes, discrete acts that are sufficiently related to a hostile work environment
claim that they can be considered part of the same claim).
Gowski, 682 F.3d at 1312 -1313 (italics in original).
Hill alleges that after she complained about Perkins’ comments, Perkins created a
retaliatory hostile work environment which resulted in several confrontations and shouting
matches between them regarding his retaliatory scrutiny of her work.
Viewing the totality of Hill’s allegations as to Perkins’ conduct in the light most
favorable to Hill, the Court finds that she has failed to establish a prima facie case of retaliatory
hostile environment. The discrete acts of retaliation and the behavior Perkins exhibited toward
Hill simply do not meet the objective component. As to frequency and severity of the conduct,
from August 2010 (when Hill reported Perkins’ comments) through the end of the school year of
2011 (when Hill accepted a transfer), Perkins wrote four memoranda to Principal Dailey and Hill
and Perkins engaged in four distinct confrontations as recorded by Hill - December 10, 2010
(describing Perkins as shouting, ranting, uncontrollable, irate, and loud); February 11, 2011
(Perkins followed custodians room to room and required Hill to re-clean a room); May 6, 2011
(staff meeting following which Perkins yelled at Hill and she thought he might grab her, she told
him to get out of her face)10; and again on May 6, 2011 (Hill described Perkins as loud and
uncontrollable when they were in Principal Dailey’s office regarding the earlier confrontation).
Hill testified that Perkins exhibited the same unpleasant behavior toward the other custodians,
male and female. (Doc. 29-3, p. 16)
In sum, Hill has failed to show conduct that objectively could be determined to be so
severe and pervasive as to create a retaliatory hostile work environment. Therefore, the Board is
entitled to summary judgment as to this claim.
Upon consideration of the evidence and for the reasons set forth herein, the Court finds
that the Board is entitled to judgment as a matter of law. See McDowell v. Brown, 392 F.3d 1283,
1288 (11th Cir. 2004) (having resolved all issues of material fact in favor of the non-movant, the
court must “then determine the legal question of whether the [movant] is entitled to judgment as
On this allegation, Hill’s deposition testimony contradicts her written notes which were
submitted in support of her opposition to summary judgment. At deposition, Hill testified that
Perkins grabbed her. (Doc. 29-3, p. 8)
a matter of law under that version of the facts.”) (citation omitted). Accordingly, the motion for
summary judgment is GRANTED.
Judgment shall be entered by separate document as provided in Rule 58 of the Federal
Rules of Civil Procedure.
DONE and ORDERED this the 22nd day of April 2014.
s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
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