Shoots v. City of Mobile et al
ORDER granting 70 Motion for Summary Judgment; granting 74 Motion for Summary Judgment. This case is DISMISSED. Signed by Judge Callie V. S. Granade on 3/18/2015. copies to parties. (sdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CITY OF MOBILE, et al.
) CIVIL ACTION NO. 13-455-CG-N
This matter is before the Court on Defendants’ Motions for Summary (Docs.
70, 74) and Plaintiff’s Response (Doc. 83). For the reasons set forth herein, both
motions are due to be granted.
Plaintiff Lakeisha Shoots filed the operative amended complaint in this
action on June 2, 2014, alleging unlawful discrimination and retaliation, pursuant
to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et. seq., and 42 U.S.C.
§§ 1981, 1983 against the City of Mobile (“the City”) and Sergeant Carla Shumock
(“Sgt. Shumock”). (Doc. 43). Plaintiff, an African-American female, is a current
employee of the City, and has served as a Public Safety Dispatcher I since 1996.
In resolving these motions, the Court construes the evidence and the factual
allegations in the light most favorable to the non-moving party. See Skop v. City of
Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007); Burton v. City of Belle Glade, 178
F.3d 1175, 1187 (11th Cir. 1999) (providing that when ruling on a motion for
summary judgment, the court “should view the evidence and all factual inferences
therefrom in the light most favorable to the party opposing the motion.”).
(Id.). Plaintiff contends that in 2011, she applied for a promotion to the position of
Public Safety Dispatcher II (“PSD II”), and although she was ranked second on the
list of eligible employees, the City promoted a less experienced white employee as
opposed to her. (Id.). As a result, Plaintiff filed an Equal Employment Opportunity
Commission complaint and a pro se lawsuit in this Court, alleging racial
discrimination and retaliation in connection with the City’s failure to award her the
2011 promotion (“Shoots I”). Shoots v. City of Mobile Police Department, Civil
Action No. 1:11-00673-KD-M. In 2012, during the pendency of Shoots I, the City
had an opening for another PSD II position, and although Plaintiff was interviewed
for the position another African-American female was hired to fill the position.
Plaintiff’s denial of this particular promotion, the 2012 promotion to PSD II, forms
the basis for her Title VII, § 1981, and § 1983 claims in the current lawsuit.
According to Plaintiff’s amended and final operative complaint in Shoots I,
Defendant Sgt. Shumock subjected Plaintiff to racial discrimination, harassment,
and retaliation since 2011. (Shoots I, Doc. 16 at 11). In her first suit, Plaintiff
argued that Sgt. Shumock filed an unsubstantiated disciplinary action against her
that was not presented to her, per standard operating procedures, as retaliation for
a Grievance Complaint Plaintiff initiated against her immediate supervisor. (Id., at
6). This disciplinary action resulted in the lowering of Plaintiff’s service rating. (Id.,
at 7). Additionally, Plaintiff contends that, on one occasion, Sgt. Shumock called
Plaintiff’s son’s doctor to verify a doctor’s excuse Plaintiff submitted in her absence
from work. (Id., at 11). Later, in September 2012, Plaintiff received notice that her
name was placed #1 on the list of employees eligible for the 2012 PSD II promotion.
(Shoots I, Doc. 22 at 55). Two days later, Sgt. Shumock issued an Observation Form
reprimanding Plaintiff for her involvement in an incident that happened
approximately a month earlier, during which Shoots contacted an officer and
requested that he bring food for two operators while he was on duty, which is
against policy. (Shoots I, Doc. 22 at 55; Id., at Doc. 16 at 13). Subsequently, another
African-American female was hired for the vacant PSD II position. Plaintiff
contends that these various actions illustrate Sgt. Shumock’s constant racial
discrimination, retaliation, and harassment of Plaintiff, and that as a result, in
September 2012, Plaintiff was forced to seek medical treatment and was later
diagnosed with an anxiety attack, which required her to miss two days of work. (Id.,
Doc. 16 at 8).
On April 25, 2013, Attorney Henry Ravesies Seawell, IV, filed a notice of
appearance on Plaintiff’s behalf. (Shoots I, Doc. 46). Subsequently, on May 20,
2013, Defendants filed a motion seeking summary judgment on Plaintiff’s racial
discrimination, retaliation, and harassment claims in Shoots I. Attorney Seawell
filed a response on Plaintiff’s behalf. (Id., Doc. 59). On June 28, 2013, this Court
granted Defendants’ summary judgment motion, and entered judgment in favor of
the Defendants. Plaintiff appealed the ruling; however, Plaintiff’s appeal was
dismissed for her failure to pay the filing fee. A few weeks later, on June 13, 2013,
Plaintiff initiated the instant suit alleging racial discrimination, harassment, and
retaliation against the City and Sgt. Shumock in connection with the events
enumerated above and the 2012 promotion (“Shoots II”).
On June 16, 2014, the Defendants filed their Answers to Plaintiff’s Amended
Complaint with affirmative defenses. (Docs. 47, 48). In the instant motion
Defendants seek summary judgment arguing, inter alia, that Plaintiff’s claims are
barred by res judicata, as Plaintiff litigated the facts related to the underlying
complaint in her previous lawsuit, and this Court rendered judgment in Defendants’
favor. (Shoots II, Docs. 70, 74). When ordered to respond to Defendants’ arguments
Plaintiff filed a response stating, “Plaintiff Shoots, through counsel, gives notice
that she does not contest the granting of summary judgment in this case.” (Id., Doc.
Standard of Review
It is well-established that 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 a judgment as a matter of law.’” Celotex Corp.
v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) (quoting
former Fed. R. Civ. P. 56(c)).
The party asking for 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.” Id. at 323. The movant
can meet this burden by presenting evidence showing
there is no dispute of material fact, or by showing, or
pointing out to, the district court that the nonmoving
party has failed to present evidence in support of some
element of its case on which it bears the ultimate burden
of proof. Id., at 322–24.
Once the moving party has met its burden, Rule 56(e)
“requires the nonmoving party to go beyond the pleadings
and by [its] 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.’” Id., at 324. To avoid summary judgment, the
nonmoving party “must do more than show that there is
some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).
On the other hand, the evidence of the nonmovant must
be believed and all justifiable inferences must be drawn in
its favor. See Anderson, 477 U.S. at 255.
ThyssenKrupp Steel USA, LLC v. United Forming, Inc., 2013 U.S. Dist. LEXIS
28034, *5-7, 2013 WL 765314, *1-2 (S.D. Ala. Jan. 29, 2013) (citations omitted).
There is a necessary corollary to the settled principle that if the nonmoving
party “fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden at trial,”
summary judgment is appropriate. Celotex, 477 U.S. at 322. Where a plaintiff has
brought a cause of action, which is challenged, through motion for summary
judgment as legally insufficient, it is incumbent upon the plaintiff to affirmatively
respond to the merits of a summary judgment motion. Indeed, a Plaintiff’s failure
to respond to these arguments constitutes an abandonment of these causes of action
and essentially acts as a waiver of her claims. Solutia Inc. v. McWane, Inc., 672 F.3d
1230, 1239 (11th Cir. 2012) (citing Resolution Trust Corp. v. Dunmar Corp., 43 F.3d
587, 598 (11th Cir. 1995)); Abraham v. Greater Birmingham Humane Soc’y, Inc.,
2013 U.S. Dist. LEXIS 45764, *11 (N.D. Ala. Mar. 28, 2013); See e.g., Hackett v.
Cmty. Behavioral Health, 2005 U.S. Dist. LEXIS 8410, 2005 WL 1084621, *6 (E.D.
Pa. May 6, 2005) (failure to address claims waives opportunity to contest summary
judgment on that ground).
This principle compels dismissal of Shoot’s claims. Defendants have
challenged the legal sufficiency of Plaintiff’s claims in two comprehensive and well
documented summary judgment motions (Docs. 70, 74), and Plaintiff has filed a
response stating that she does not contest Defendants arguments. She makes no
legal argument defending her causes of action. Accordingly, Defendants are
entitled to summary judgment on Plaintiff’s claims. Solutia Inc., 672 F.3d at 1239
(“the onus is upon the parties to formulate arguments; grounds alleged in the
complaint but not relied upon in summary judgment are deemed abandoned”).
The Court further concludes that Shoots, and her counsel, have correctly
elected to abandon Shoots claims, for assessment of Defendants’ arguments reveals
“there is no genuine issue as to any material fact and [both Defendants] [are]
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “To prevail on a
discrimination claim under Title VII and § 1981, an employee must establish that
‘she was a qualified member of a protected class and was subjected to an adverse
employment action in contrast with similarly situated employees outside the
protected class.’” Butler v. Alabama Department of Transportation, 536 F.3d 1209,
1215 (11th Cir. 2008) (citing Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087
(11th Cir. 2004) and Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th
Cir. 1998)). The Court finds that Plaintiff has failed to prove that she was subjected
to an adverse employment action as a result of her race. Indeed, while Plaintiff has
satisfied her burden with respect to the first three elements of her Title VII prima
facie case2 she has failed to submit evidence that, after her rejection for the PSD II
position in 2012, the position remained open, and Defendants continued to seek
applications from persons with her qualifications or, alternatively, that the position
was filled by a person outside of the protected class to which the plaintiff belongs.
To the contrary, the evidence proves that the City filled the 2012 PSD II position by
hiring a member of Plaintiff’s protected class, a fellow African-American female.
The City’s hiring of a member of Plaintiff’s protective class to fill the subject
position negates Plaintiff contention that the City refused to hire her on account of
her race. Accordingly, because Plaintiff fails to establish that she suffered an
The complainant in a Title VII case must carry the initial burden of establishing a
prima facie case of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (U.S. 1973). This may be done by showing that the plaintiff belongs to a
protected class under Title VII; (ii) that she applied and was qualified for a job for
which the employer was seeking applicants; (iii) that, despite her qualifications, she
was rejected; and (iv) that, after her rejection, the position remained open, and the
employer continued to seek applicants from persons of complainant’s qualifications
or that the position was filled by a person outside the protected class. See id.; see
also Walker v. Mortham, 158 F.3d 1177, 1180 n.2 (11th Cir. 1998). Once Plaintiff
has made this showing, the burden then shifts to the Defendant employer “to
articulate some legitimate, nondiscriminatory reason for the employee’s rejection.”
McDonnell Douglas, 411 U.S. at 802. “If the employer meets this burden, the
plaintiff must show that the proffered reasons were pretextual.” Springer v.
Convergys Customer Management Group Inc., 509 F.3d 1344, 1347 (11th Cir. 2007)
(citations omitted). “The ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff remains at all times
with the plaintiff.” Id.
“adverse employment action” based on her race she cannot sustain her
discrimination claims under Title VII and § 1981.
For the reasons set forth herein, it is ORDERED that Defendants’ motions
for summary judgment (Docs. 70, 74) are GRANTED, and this case is
DONE and ORDERED this 18th day of March, 2015.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE
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