Ashley v. Brooks County Sheriff's Office et al

Filing 33

ORDER granting in part and denying in part 18 Motion for Summary Judgment. Ordered by Judge Hugh Lawson on 09/23/09. (mbh)

IN THE UNITED STATES DISTRICT COURT M ID D L E DISTRICT OF GEORGIA V AL D O S TA DIVISION E d d ie Ashley, : : P la in tiff, : : v. : : S h e riff RICHARD CHAFIN, in His : O ffic ia l Capicity as Sheriff of Brooks : County, Georgia, : : D e fe n d a n ts . : ORDER T hi s matter is before the Court on Defendants' Motion to Dismiss the Brooks C o unty Sheriff's Office (Doc. 18-3), Defendants' Motion for Summary Judgment on a ll three claims (Doc. 18-3), and Defendants' Motion to bar Section 1983 monetary d a m a g e s (Doc. 18-3). After review of the motions and briefs, the pleadings and discovery materials o n file, and the relevant case law, the Court grants Defendants' Motion to Dismiss. T he Court grants the Defendants' Motion for Summary Judgment on the Title VII D i s p a r a t e Treatment Claim, but the Court denies Summary Judgment on the Title V II Failure to Accommodate and Section 1983 Claims. The Court also grants D e fe nd a n ts ' motion to bar any potential Section 1983 monetary damages.

C ivil No. 7:07-cv-177(HL)

I.

BACKGROUND T hi s is an employment discrimination case arising from Defendants' refusal

to allow Plaintiff to observe his Sabbath on Saturdays. The facts viewed in the light m o s t favorable to Plaintiff as the non-moving party are as follows: P l a i nti ff, Mr. Eddie Ashley, has been an active member of the Seventh-day A d v e nti s t Church (the "Church") since 1965. (Ashley Dep. at 10.) Among the tenets o f the church is one that forbids the Church's adherents to work on the Sabbath, d e f ine d as sunset on Friday through sunset on Saturday. (Ashley Dep. at 50.) Ashley alleges he has observed this practice since 1965 with no exceptions. (Ashley D e p . at 51.) In 1986, Ashley applied for and was offered a position as a detention officer w i th the Brooks County Sheriff's Office. (Ashley Dep. at 48.) Ashley accepted with the agreement that his Sabbath tenet would be accommodated. (Ashley Dep. at 505 1 .) During his nineteen year tenure as a Brooks County Detention Officer, Ashley o nl y had two scheduling conflicts. (Ashley Dep. at 63-64.) The first conflict, in 2002, w a s resolved when Ashley informed the new jail administrator about his religious c o nfl i c t. (Ashley Dep. at 64.) Ashley was unable to resolve the second conflict, w hi c h occurred on March 5, 2005, and this ultimately lead to Ashley's termination a nd this dispute. (Ashley Dep. at 55 & 64.)

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T he Sheriff's Office opened a new jail facility in February 2005. (Chafin Dep. a t 25.) W he re a s the former jail facility housed approximately 90 inmates, the new fa c i l i ty holds between holding 60-80 inmates. (Chafin Dep. at 25.) Additionally, w he r e a s the former facility employed 8-9 people, the new facility employs 20-22 jail o ffic e rs and administrative staff. (Chafin Dep. at 24 & 27.) In addition to these changes, the new jail facility requires stricter policies and p ro c e d ure s than the former facility for its employees to ensure the health, safety, and w e l fa re for the inmates and residents of Brooks County. (Chafin Dep. at 41-42; D M S J at 2.) According to Sheriff Chafin, allowing employees to swap schedules "w o ul d have been scrutinized and looked at a lot closer under the new rules and und e r the new facility, but I can't rule out the fact that I would not have done that had [A s hl e y ] found somebody." (Chafin Dep. at 42-43.) B e c a us e guard coverage is required twenty-four hours a day, seven days a w e e k at the new facility, the detention officers have to work 12-hour shifts on a ro ta ti ng schedule. (Chafin Dep. at 29.) The officers work three days on, three days o ff, and then two days on, two days off. (Chafin Dep. at 29.) The neutral rotating s c he d ul e requires each detention officer to work two weekends per month, including S a turd a y s . (Chafin Dep. at 29.) Despite Sheriff Chafin's knowledge of the Seventh-day Adventist restrictions, w hi c h forbade Ashley to work on Saturdays, Ashley was assigned to work on S a turd a y , March 5, 2005. (Chafin Dep. at 34-35, and 65-66.) Upon learning of this 3

S a t u r d a y shift, Ashley contacted his supervisor, Captain Calvin Troy, and notified hi m of the conflict between his religious practice and his Saturday assignment. (A s hl e y Dep. at 66.) Captain Troy informed Ashley that he was free to swap his S a tur d a y shifts with another employee. (Ashley Dep. at 66.) The Sheriff Office's

g e ne ra l policy was to allow detention officers to swap shifts as long as overtime pay w a s not required. (Chafin Dep. at 41-42.) A fte r Ashley's conversation with Captain Troy, Ms. Darlene W o o te n, another d e te nti o n officer at the new facility, volunteered to work Ashley's Saturday shifts if A s hl e y would take Ms. W o o te n's Sunday shifts. (Ashley Dep. at 67.) Ashley

d e c l i ne d Ms. W o o te n's offer, however, in order to swap with another detention officer a t the facility, Mr. Rocky Rotchford. (Ashley Dep. at 67.) Ashley explained that he p re fe rre d to swap with Rotchford because then Ashley, a male officer, would be re p la c e d by another male officer. (Ashley Dep. at 67-68.) On February 22, 2005, Ashley and Rotchford visited Captain Troy to discuss the shift swap and to seek approval. (Ashley Dep. at 70.) Upon learning of their s w a p proposal, Captain Troy allegedly replied that he was "not going for it" and "ain't no b o d y going to want to work every Saturday." (Ashley Dep. at 70.) Afterwards, A s hl e y volunteered to work every Sunday and Rotchford re-extended their offer to s w a p again. (Ashley Dep. at 71.) W he n the meeting concluded, the swap issue re m a i ne d unresolved with Captain Troy saying he would have to think about the p ro p o s e d swap. (Ashley Dep. at 67.) 4

T he issue remained unresolved from the meeting on February 22 to the day b e fo re Ashley's Saturday shift on March 4. (Ashley Dep. at 73.) Ashley states that d uri ng that time he never spoke with Captain Troy about the swap, and that he was w a i t i ng for Captain Troy to keep his promise and give him a final answer on the m a tte r. (Ashley Dep. at 73.) On the morning of March 4, the day before he was scheduled to work on S a turd a y , Ashley learned that Captain Troy denied the swap request. (Ashley Dep. a t 74.) Captain Troy explained to Ashley that he could not swap with Rotchford b e c a us e Rotchford was going to be transferred back to the position of Outside Detail O f fi c e r.1 (Ashley Dep. at 74.) Ashley concedes that, because Rotchford was no l o ng e r working as a detention officer Rotchford was ineligible to swap schedules with A s hl e y . (Plaintiff's Statement of Material Facts ("PSMF") ¶ 27.) Ashley then asked C a p ta i n Troy if he had asked anybody else to swap schedules, to which Captain T ro y responded that it was not his responsibility. (Ashley Dep. at 75.) In addition, C a p ta i n Troy allegedly said that he had scheduled Ashley to work on Saturday and he expected Ashley to work his shift. (Ashley Dep. at 75-76.) After the swap re j e c ti o n, the delay in rejection notification, and Captain Troy's remarks, Ashley

As an Outside Detail Officer, Rotchford was responsible for transporting a nd supervising inmates while they performed manual labor. (PSMF ¶ 22.) R o tc hfo rd had previously served in this capacity, but was transferred to the p o s i ti o n of detention officer as punishment for having an affair with a woman w hil e on duty as an Outside Detail Officer. (PSMF ¶ 23.) 5

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c l a i m e d he no longer believed that a voluntary swap was possible. (Ashley Dep. at 8 2 - 8 3 .) That same day, March 4, Ashley told Captain Troy that he would not be c o m ing to work the next day, Saturday, March 5. (Ashley Dep. at 77.) On the morning of March 5, Ashley received a call from a fellow detention o ffic e r regarding his Saturday shift, and Ashley stated that he would not be coming to work that day. (Ashley Dep. at 78.) Captain Troy called approximately half an ho ur later to tell Ashley not to show up for work on that Sunday either, and that A s hle y should meet him in his office on Monday morning. (Ashley Dep. at 78.) At the meeting on Monday, March 7, Ashley reiterated to Captain Troy and C hi e f Jerry Miller that he could not work on Saturdays because of his religious b e l i e fs . (Ashley Dep. at 78.) Captain Troy asked Ashley to sign a letter of

re s i g na ti o n. (Ashley at 80.) After Ashley refused to sign, Captain Troy terminated hi m . (Ashley Dep. at 80-81.) Ashley alleges that during this meeting Captain Troy s ta te d that because Ashley could not work on Saturday, he could not use him. (A s hl e y Dep. at 81.) The Sheriff's Office did not offer any type of accommodation to Ashley during this meeting. (Ashley Dep. at 80.) F o l l o w i ng his termination, Ashley timely filed a charge with the Equal E m p l o y m e nt Opportunity Commission (the "E.E.O.C"). After receiving a right to sue l e tte r on May 20, 2005, Ashley timely filed his complaint on October 18, 2007.

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II.

DISCUSSION W i th regard to the issues raised by Defendant, the Court has reviewed the

i s s u e s and made the following determinations. First, the Court dismisses the B ro o k s County Sheriff's Office as a party because it does not have the capacity to b e sued. Second, the Court grants Defendants' Motion for Summary Judgment for the Title VII Disparate Treatment Claim. Third, the Court denies Defendants' Motion fo r Summary Judgment for the Title VII Failure to Accommodate Claim after d e term ini n g that there are genuine issues of material facts. Fourth, the Court d e ni e s Defendants' Section 1983 equal protection claim using the same parallel re a s o ni ng as used for the previous issue. Fifth, the Court grants Defendants' m o ti o n to bar any potential Section 1983 monetary damages. A. Capacity to be Sued in Application to the Brooks County Sheriff's O f f ic e .2 T he Defendants argue that all claims against the Brooks County Sheriff's O ffi c e must be dismissed because the Sheriff's Office is not a proper party under a ny of Plaintiff's three claims.3 The Court agrees. The issue of whether a

In Plaintiff's Amended Complaint (Doc. 14), Plaintiff agreed to dismiss S he ri ff Chafin "in his individual capacity," but to maintain his claim against Sheriff C ha fi n in his official capacity. Notwithstanding the granting of this motion, Sheriff C ha fi n is still subject to suit in his official capacity. Plaintiff offered no rebuttal on this specific issue in his Brief in Opposition to Summary Judgment (Doc. 24). 7
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g o v e rnm e nt entity is capable of being sued is "determined by the law of the state in which the district court is held." Fed.R.Civ.Proc. 17(b); accord Lawal v. Fowler, 1 9 6 Fed. Appx. 765, 768 (11th Cir. 2006). In this case, Georgia law controls the i s s ue . Georgia law recognizes only three classes of legal entities capable of being na m e d in a lawsuit: "(1) natural persons; (2) artificial persons (a corporation); and (3 ) quasi-artificial persons as the law recognizes as being capable to sue." Lawal, 1 9 6 Fed. Appx. 768 (citing Georgia Insurers Insolvency Pool v. Elbert County, 258 G a . 317, 368 (1988)). A sheriff's department does not fall into any of the categories a nd therefore is not capable of being sued. Morgan v. Fulton County Sheriff's D e p a rtm e nt, 2007 W L 1810217, *6 (N.D. Ga. June 21, 2007)(dismissing claim a g a i ns t Fulton County Sheriff's Department because it was not an entity subject to s ui t). Therefore, the Brooks County Sheriff's Office is dismissed as a defendant. B . Summary Judgment Standard F e d e ra l Rule of Civil Procedure 56(c) requires that the entry of summary j ud g m e nt is only appropriate when the court is satisfied that "there is no genuine i s s ue as to any material fact and that the moving party is entitled to a judgment as a matter of law." In applying this standard, the court must examine the pleadings, d e p o s i ti o ns , answers to interrogatories, and admissions on file, together with any a ffid a v i ts and other evidence in the record "in the light most favorable to the nonm o v ing party." Everett v. Napper, 833 F.2d 1507, 1510 (11th Cir. 1987). However, uns upp o rte d self-serving statements by the party opposing summary judgment are 8

i ns uffi c i e nt to avoid summary judgment. See Midwestern W a ffl e s , Inc. v. W a ffl e H o use , Inc., 734 F.2d 705, 714 (11th Cir. 1984). If the facts and inferences point overwhelmingly in favor of one party, such tha t reasonable people could not arrive at a contrary verdict, then the motion was p ro p e rly granted. Tidwell v. Carter Products, 135 F.3d 1442, 1425 (11th Cir. 1998). C o nv e rs e l y , if there is substantial evidence opposed to the motion such that re a s o n a b l e people, in the exercise of impartial judgment, might reach differing c o nc l us i o ns , then such a motion was due to be denied and the case was properly s ub m i tte d to the jury. Id. The non-moving party must provide more than a mere s c i nti l l a of evidence to survive a motion for judgment as a matter of law; "there must b e a substantial conflict in evidence to support a jury question." Id. The moving party bears the initial burden of demonstrating "that there is an a b s e nc e of evidence to support the non-moving party's case." Celotex Corp. v. C a tre tt, 477 U.S. 317, 325 (1986). W he n this burden is met, the non-moving party i s then required to "go beyond the pleadings and designate specific facts showing tha t there is a genuine issue for trial." Id. at 324 (quoting Fed.R. Civ. P.56(e)). This b urd e n requires the non-moving party to come forward with evidence of each e s s e nti a l element of its claim. Hansen v. Perry Techs., 206 F. Supp. 2d 1223, 1225 (S .D . Fla. 2002). C. Disparate Treatment Under Title VII. Title VII makes it unlawful for an employer "to discriminate against any 9

i nd i v i d ua l with respect to his compensation, terms, conditions, or privileges of e m p l o y m e nt, because of such individual's race, religion, sex, or national origin." 42 U .S .C . § 2000e-2(a)(1). The term "religion" is defined in the statute as including "all a s p e c ts of religious observance and practice, as well as belief, unless an employer d e m o ns tra te s that he is unable to reasonably accommodate . . . [the] employee's re l ig i o us observance or practice without undue hardship on the conduct of the e m p l o y e r's business." 42 U.S.C. § 2000e(j). Plaintiff Ashley contends that

D e fe nd a nt discriminated against him on the basis of his religion, and now Plaintiff a s s e rts both a Title VII Disparate Treatment and a Title VII Failure to Accommodate C laim . The Court will first address the disparate treatment claim found in Count One o f the Plaintiff's Complaint (Doc. 1).4 Defendant contends that Plaintiff cannot e s ta b l i s h a prima facie case of disparate treatment, and the Court agrees.5 W he re , a s here, there is no direct evidence of religious discrimination, Plaintiff must use the e v i d e nti a ry framework set forth by the Supreme Court to establish a prima facie c a s e through circumstantial evidence. McDonnell Douglas Corp. v. Green, 411 U.S.

From the context of the facts and the complaint, the Court agrees with the Defendant's assumption that Plaintiff's "religious discrimination" claim is a d i s p a ra te treatment claim. The Court also notes that in Plaintiff's Opposition Brief to Summary J ud g m e nt (Doc. 24) there is no argument or reference to support his disparate tre a tm e nt claim. 10
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7 9 2 , 793 (1973); accord Rojas v. Florida, 285 F.3d 1339, 1342 n. 2 (11th Cir. 2 0 0 6 )(fi nd i ng that "only the most blatant remarks, whose intent could mean nothing o the r than to discriminate on the basis of some impermissible factor constitutes d ire c t evidence of discrimination"). In order to establish a prima facie case of discrimination based upon religion thro ug h circumstantial evidence, a plaintiff must establish: (1) he is a member of a p r o te c te d class, (2) he was qualified for his job, (3) he was subjected to an adverse e m p l o y m e nt action, and (4) he was replaced by someone outside his protected c l a s s or was treated differently than similarly situated employees. W i l s o n v. B/E A e r o s p a c e , Inc., 376 F.3d 1079, 1087 (11th Cir. 2004); see McDonnell Douglas, 4 1 1 U.S. at 802. W he n the plaintiff establishes a prima facie case, he creates the p re s um p ti o n of discrimination, and the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. See Rojas, 285 F .3 d at 1342. Despite the shifting burden of production between the plaintiff and the d e f e n d a nt under the McDonnell Douglas framework, "[t]he ultimate burden of p e rs ua d i ng the trier of fact that the defendant intentionally discriminated against the p l a i nti ff remains at all times with the plaintiff." Texas Dept. of Comm. Affairs v. B urd i ne , 450 U.S. 248, 253 (1981). W i tho ut any evidence to support his claim, the plaintiff cannot meet his b urd e n to prove a prima facie case. Postell v. Greene County Hosp. Authority, 2 0 0 7 W L 1876014 *6 (MD. Ga. June 27, 2007)(ruling that "since plaintiff has failed 11

to produce any evidence from which a reasonable jury could conclude that she was tre a te d differently than a similarly situated person outside her protected class, p l a i nti ff cannot make out a prima facie case of religious discrimination"). First, it is und i s p ute d that Ashley, as a Seventh-day Adventist, is a member of a protected c la s s . Second, considering that Ashley spent nineteen years as a detention officer, a nd construing the facts in the light most favorable to Ashley, the Court assumes fo r the purposes of this part of the analysis that Ashley was qualified for his position. T hi rd , Ashley was terminated from his employment on March 7, 2005 for not w o r k i ng a Saturday shift. The fourth and only remaining element Ashley must prove to establish a prima facie case is that he was replaced by someone outside his p r o te c te d group, or was treated differently than similarly situated employees. A s h l e y has produced no evidence to show that he was replaced by someone o uts i d e of his protected class. Moreover, Ashley has proffered no evidence that any o the r similarly situated employees, who are not Seventh-day Adventist, were t r e a te d differently after failing to report to work. Ashley has failed to produce a s i ng l e valid comparator, therefore Ashley has clearly not met his burden to establish a prima facie case. Consequently, Sheriff Chafin's Motion for Summary Judgment o n Ashley's claim for disparate treatment is granted.

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D . Failure to Accommodate Under Title VII T he Court will next address the failure to accommodate claim found in Count T w o of Plaintiff's Complaint (Doc. 1). Under Title VII, an employer has an obligation to "reasonably accommodate" an employee's religious observance or practice unl e s s such accommodation would cause "undue hardship" on the conduct of the e m p lo y e r's business. Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 63 (1986). T o establish a prima facie case of failure to accommodate, a plaintiff must d e m o ns tra te : (1) he had a bona fide religious belief that conflicted with an e m p l o y m e nt requirement; (2) he informed his employer about the belief and the c o nfl i c t; and (3) he was discharged or disciplined for failing to comply with the c o nfl i c ti ng employment requirement. Beadle v. Hillsborough County's Sheriff's D e p t . , 29 F.3d 589, 592 n. 5 (11th Cir. 1994)(citing Brener v. Diagnostic Center H o s p i ta l , 671 F.2d 141, 144 (5th Cir. 1982)); see also Beadley v. City of Tampa, 42 F .3d 633, 636 (11th Cir. 1995). P l a i nti ff Ashley is able to establish a prima facie case on this claim. First, A s hl e y is a Seventh-day Adventist who believes that work is prohibited on his S a b b a th, which is recognized from sunset Friday until sunset Saturday. Second, A s hl e y informed his employer about his belief at the beginning of his employment i n 1986, and subsequently reminded his supervisor, Captain Troy, in the weeks l e a d i ng up to the controversy. Third, there is no dispute that Ashley was fired from

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hi s position on March 7, 2005 for not working on a Saturday. Thus the Court finds tha t Ashley has met his initial burden to establish a prima facie case of failure to a c c o m m o d a te . Once the plaintiff establishes a prima facie case, then the burden shifts to the d e fe nd a nt to show that it offered the plaintiff a reasonable accommodation, or that a ny accommodation would have imposed an undue hardship on the company's b us i ne s s . Rice, 410 F.Supp.2d 1301, 1309 (N.D. Ga. 2005). Recognizing that the p hra s e s "reasonable accommodation" and "undue hardship" are not defined under the statutes, each case necessarily depends upon its own facts and circumstances, a n d in a sense every case boils down to a determination as to whether the e m p l o y e r has acted reasonably. City of Tampa, 42 F.3d at 636. The Court also ta k e s notice of the Eleventh Circuit maxim that courts should go slow in re s truc turi ng an employment practice when the employer's duties involve the p ro te c ti o n of lives and property, such as is present in this case. City of Tampa, 42 F .3 d at 637. 1. Reasonable Accommodation I n defining "reasonable accommodation," the courts have stated that c o m p l ia nc e with Title VII does not require an employer to give an employee a c ho i c e among several accommodations. Ansonia Bd. of Educ., 479 U.S. at 68. The i nq ui ry ends when an employer shows that a single reasonable accommodation was

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a ffo rd e d the employee, regardless of whether that accommodation is one which the e m p l o y e e suggested. Id. Moreover, "voluntary swaps instituted by employers within the neutral rotating s y s te m constitutes reasonable accommodations under Title VII." City of Tampa, 42 F .3 d at 637(citing Hillsborough County Sheriff's Dept., 29 F.3d at 593). To meet thi s standard of reasonable accommodation, the employer must meet two criteria: (1 ) a neutral rotating schedule, and (2) an offer to swap voluntarily (or substitute) s c he d ul e s . Id. Plaintiff does not contest that the Sheriff's Office implemented a ne utra l rotating scheduling system. However, the voluntary swap is the point of c o nte nti o n between the parties. T he E.E.O.C. has promulgated guidelines to demonstrate how employers can a c c o m m o d a te employees' religious practices. Below are "some of the means of a c c o m m o d a ti ng the conflict between work schedules and religious practices which the commission believes that employers . . . should consider as part of the o b lig a tio n to accommodate:" S o m e means of doing this which employers and labor organizations s ho ul d consider are: to publicize policies regarding accommodation a nd voluntary substitution; to promote an atmosphere in which such s ub s ti tuti o ns are favorably regarded; to provide a central file, bulletin

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b o a rd or other means for matching voluntary substitutes with positions fo r which substitutes are needed. 29 C.F.R. § 1605.2(d)(1); e.g., E.E.O.C. v. Ithaca Industries, Inc., 849 F.2d 1 1 6 , 119 (4th Cir. 1988)(en banc). F o r support of their position, Defendants rely upon Beadle v. Hillsborough C o unty Sheriff's Department, 29 F.3d 589 (11th Cir. 1994). In Hillsborough, there w a s an employee who requested not to be scheduled to work on Saturdays so he c o ul d recognize his Sabbath as a Seventh-day Adventist. Id. at 590. The employee fi rs t mentioned his inability to work on Saturday after working with the Sheriff's D e p a rtm e nt for over eleven weeks and after completing his training period. Id. at 5 9 0 -5 9 1 . Upon learning of employee's religious practices, the Department granted hi m Saturdays off until the Department determined the required legal obligation. Id. a t 591. The Department later informed the employee that he was free to arrange v o l unta ry shift swaps, and the Department heavily assisted in this effort. Id. S p e c i fi c a l l y , the Department provided the employee with roster sheets and allowed hi m to advertise swaps both at roll call and on a Department bulletin board. Id. The D e p a rtm e nt further assisted by allowing the employee to supplement shift swaps w i th vacation and sick days, as well as compensation time when he could not s e c ure a swap as long as the Department could manage it. Id.

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T he Court in Hillsborough determined that the Department met and exceeded the standard laid out by the E.E.O.C., which boils down to an employer's re s p o ns i b i l i ty to "promote an atmosphere in which such substitutions are favorably re g a rd e d ." 29 C.F.R. § 1605.2(d)(1). Thus, when the employee missed one day of w o rk , and on another occasion he walked out during the middle of a shift with no w a rni ng , the Department was justified in terminating him. Id. at 593. In opposition to Defendant's position, Plaintiff relies upon Rice v. U.S.F. H o l l a nd , 410 F.Supp.2d 1301 (N.D. Ga. 2005). In Rice, the employee was a S e v e nt h - d a y Adventist who also requested that his Sabbath be recognized from s und o w n Friday to sundown Saturday. Id. at 1304. The employee approached his e m p l o y e r about his scheduling issue approximately two months in advance of the fi rs t possible scheduling conflict. Id. at 1308. During that initial conversation, the e m p l o y e e claimed that his supervisor said that "he would handle it," and no further a c ti o n was taken by his employer. Id. at 1310. Employee was under the

i m p re s s i o n that his religious accommodation was going to be honored until he was a s s i g n e d to work during his Sabbath with only hours of notice. Id. at 1310-1311. E m p l o y e e refused to work on his Sabbath and was terminated as consequence. Id. In ruling against the employer, the Rice Court found that the employer "made a b s o l ute l y no effort to find a solution." Id. at 1310; accord E.E.O.C. v. Ithaca Ind us tri e s , Inc., 849 F.2d 116, 118-119 (4th Cir. 1988)(en banc)(finding that "it is c l e a r that the burden is on the employer to offer accommodation," and that employer 17

v i o l a te d the plaintiff's rights by making no effort to accommodate the plaintiff with a ny of the methods suggested by the E.E.O.C.'s guidelines in 29 C.F.R. § 1 6 0 5 .2(d )(1 )). The Court in Rice specifically pointed to a lack of the same factors m e nti o ne d in the E.E.O.C.'s 29 C.F.R. § 1605.2(d)(1) and discussed in H i l l s b o ro ug h. Specifically, the employer in Rice did not offer the plaintiff information o r advice about accommodation, did not provide a roster sheet, did not offer a c ha nc e for the plaintiff to advertise for swaps, and did not allow the plaintiff to use s i c k and vacation days. Id. In the present case, Sheriff Chafin argues that the Sheriff's Office offered v o l unta r y swaps and therefore met the standard for reasonable accommodations. V i e w i ng the facts in a light most favorable to the Plaintiff, the Court disagrees. A s hl e y claims the Sheriff's Office originally offered voluntary shift swaps, but that a fte r the February 22 meeting where Ashley and Rotchford proposed their shift s w a p , "the whole attitude had changed . . . it seemed like [the Office was] just not g o i ng to allow me to have Saturday off anymore." (Ashley Dep. at 82.) During that m e e t i n g Ashley claims that Captain Troy said he was "not going for it," and that "no b o d y would want to work every Saturday." (Ashley Dep. at 70-71.) According to Ashley, the meeting ended with Captain Troy saying that he "would have to think a b o ut it," and that he would get back with Ashley about the scheduling conflict. (A s hl e y Dep. at 71 & 73.) In the words of Ashley, "I was waiting for [Captain Troy] to get back with me about it." (Ashley Dep. at 73.) It was not until the morning 18

b e fo re his Saturday shift assignment that Ashley learned that the swap had been d e nie d because Rotchford was going to be transferred. (Ashley Dep. at 74.) Captain's Troy's actions do not suggest that the Office was willing to offer A s hl e y any accommodation. If Captain Troy knew that Rotchford was going to be tra ns fe rre d , or was likely to be transferred, then he should have warned Ashley, or a t a minimum told him immediately after the transfer had been implemented. If the C a p ta i n did not know about the transfer at the time, then there does not appear to b e a valid reason for him to have discouraged the swap. Like the plaintiff in Rice, A s hl e y would have been in a better position had the employer rejected the swap on F e b u r a ry 22. Rice, 410 F.Supp.2d at 1311(finding that "oddly enough, a more a c c o m m o d a tin g response to plaintiff's notification of the schedule-Sabbath conflict w o ul d have been for [the employer] to inform plaintiff that [they were] going to do nothing to help him or not respond in any way"). In addition, during the March 4 conversation, Ashley alleges Captain Troy s a i d that he expected Ashley to work his scheduled shifts, including his scheduled s hi ft on Saturday. (Ashley Dep. 75-76). At the meeting the following Monday, C a p t a i n Troy asked Plaintiff whether he would be willing to work Saturdays and, up o n Ashley's refusal, he terminated Ashley's employment. During that meeting A s hl e y claims that Captain Troy told him that because Ashley could not work on S a turd a y , Captain Troy could not use Ashley. (Ashley Dep. 81). The Court finds tha t Captain Troy's alleged statements and actions, considered along with Ashley's 19

te rm i na ti o n, support Ashley's contention that the Office was no longer willing to a c c o m m o d a te his religious practices.6 C o ns i d e ri ng the guidelines provided in 29 C.F.R. § 1605.2(d)(1) and H i l l s b o ro ug h, the Court finds that the Sheriff's Office clearly has not met the re q uire d standard. Furthermore, considering the totality of the evidence, it appears tha t shift swaps were discouraged, which is contrary to the E.E.O.C.'s guideline of

Sheriff Chafin collaterally argues that Ashley cannot prevail on his a c c o m m o d a ti o n claim because Ashley did not apply a good faith effort in seeking a c c o m m o d a ti o n. Sheriff Chafin states that Ashley, an employee, "has a duty to m a k e a good faith attempt to accommodate his religious needs through the m e a ns offered by employer." (DMSJ at 12-13)(citing Hillsborough, 29 F.3d at 5 9 2 ). Because Ashley failed to mention Ms. W o o te n as a swap candidate, Sheriff C ha fi n argues, Ashley failed to make a good faith effort. As part of his argument, S he r i ff Chafin admits that Ashley did not mention Ms. W o o t e n, because in A s hl e y 's opinion, it would not have made a difference, but dismisses this c o nte nti o n claiming that "Plaintiff has not provided any evidence in support." (D M S J at 13). The Court concludes to the contrary. Considering all the evidence i n the light most favorable to the nonmovant, the Court finds sufficient evidence fo r Ashley to have reasonably believed that it would not have made a difference, the re fo re justifying why he did not mention other names. See Rice, 410 F .S up p .2 d at 1311 (ruling that employee did not compromise his Title VII a c c o m m o d a ti o n claim by not acting when he "reasonably believed" that his a c ti o ns would not have made a difference). The Sheriff's Office's failure to communicate with Ashley buttresses the C o urt's holding. A reasonable observer would expect that if the Office genuinely w a s willing to allow Ashley to swap shifts, then there should be evidence to show tha t a supervisor inquired as to whether there was any other possible substitute. Even Sheriff Chafin admits accommodation requires "bilateral cooperation," w hi c h necessitates the Office put forth some cooperation and effort. (DMSJ at 1 3 ). 20

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"p ro m o t[i ng ] an atmosphere in which such substitutions are favorably regarded." 29 C .F .R . § 1605.2(d)(1). Reviewing the evidence in the light most favorable to Ashley, despite an e a r l i e r position accommodating voluntary swaps, the Sheriff's Office actually d i s c o ura g e d swaps. Not only this, but the Sheriff's Office exacerbated the situation b y failing to communicate with Ashley until the day before his Saturday shift. Then, i ns te a d of the Office making the minimal effort to inquire whether Ashley knew of a ny other substitute candidates, Captain Troy threatened to terminate Ashley if he d i d not work on March 5, making not even the barest attempt to accommodate A s hl e y .7 Perhaps more damningly, at the March 7 meeting, before terminating A s hl e y , the Office indicated that it was no longer prepared to accommodate A s hl e y 's religious restrictions. These facts, construed in a light most favorable to A s hl e y , support the view that the original verbal offer was a sham and that the O ffi c e took no legitimate action to accommodate Ashley. Therefore, this case is s i m i l a r to Rice and E.E.O.C. in that the employer appears to have "made absolutely no effort" to accommodate Plaintiff. As in most cases, Defendant's testimony on the controversy is different from P l a i nti ff's , and in this case Sheriff Chafin has stated that a swap "would have been s c ruti ni ze d and looked at . . . a lot closer under the new rules and under the new

From the record it is also not entirely clear whether W o o te n, or anyone e l s e , was still available to swap shifts with Ashley on March 5. 21

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fa c i l i ty , but I can't rule out the facts that I would not have done [a shift swap] had [A s hl e y ] found somebody." [Chafin Dep. at 42-43]. Still the Court has not heard any d i re c t testimony from Captain Troy, one of the two principal players in this c o ntro v e r s y . At trial, a jury may credit the testimony of Sheriff Chafin and Captain T ro y , and thus conclude that the opportunity for a voluntary swap did exist. On s um m a ry judgment, however, the Court is not permitted to simply discredit Ashley's te s ti m o ny as the non-moving party, in favor of Sheriff Chafin's. See Rice, 410 F. S up p .2 d at 1311. Accordingly, the Court finds from the evidence presented that the Office c a nn o t prove that it offered voluntary swaps, or otherwise offered a single a c c o m m o d a ti o n to Ashley. 2. Undue Hardship T he Court will next address whether voluntary swaps would have amounted to an "undue hardship" on the Office, which would relieve the Office from meeting a ny accommodation requirements in this case. The Supreme Court has defined "und ue hardship" as "any act that would require an employer to bear greater than a `de minimis cost' in accommodating an employee's religious beliefs." Beadle, 29 F .3d at 592 (citing Trans W o rl d Airlines, Inc. v. Hardison, 432 U.S. 64, 75 (1977)). T he Supreme Court also has recognized that the phrase "de minimis cost" entails no t only monetary concerns, but also the employer's burden in conducting its b us i ne s s . Trans W o rl d Airlines, Inc., 432 U.S. at 75; accord Beadle, 42 F.3d at 636. 22

A refusal to accommodate is justified only when an employer or labor organization c a n demonstrate that an undue hardship would in fact result from each available a l te rna ti v e method of accommodation. 29 C.F.R. § 1605.2(c)(1). In City of Tampa, the employee was a new police trainee who desired to have S a turd a y s off to honor his Sabbath as a Seventh-day Adventist. City of Tampa, 42 F .3 d at 654. For the city to have made accommodations for the employee, the city w o ul d have been forced to assign him to another training squad and not to rotate hi m during the third phase of training. Id. at 637. The plaintiff admitted that this a d j us tm e nt would cause him to miss educational benefits from his training. Id. The C o urt upheld the city's decision to deny the employee's request, stating that the a c c o m m o d a ti o n would have exceeded a de minimus cost for the employer to c o nd uc t his business, which would amount to a undue hardship on the city. Id. at 6 3 7 -6 3 8 . H o w e v e r, those costs found in City of Tampa are absent in the present case. U nl i k e the trainee in City of Tampa, Ashley would not sacrifice any education b e n e fi ts after eighteen years of experience on the job. Nor is there any evidence tha t if Ashley would have swapped shifts that the administration would have needed to do any material work to record a once-a-week substitution. S he r i ff Chafin also suggests that if Ashley is accommodated, then all e m p l o y e e s will begin to swap their schedules, all order will be lost, chaos will

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e ns ue , and public safety will be threatened. The E.E.O.C. has addressed a similar is s ue and come to a contrary conclusion: "A mere assumption that many more p e o p l e , with the same religious practices as the person being accommodated, may a l s o need accommodation is not evidence of undue hardship." 29 C.F.R. § 1 6 0 5 .2 ( c )( 1 ) . In other words, the assumption that other employees will seek

a c c o m m o d a ti o n without any supporting evidence is not a relevant consideration. W ithout a single piece of evidence in support of the Sheriff's suggestion, the Court c a nno t consider such a baseless claim. Moreover, the evidence on record actually suggests that allowing the a c c o m m o d a ti o n would benefit all parties because there are only two long-term d e te nti o n officers who desire to swap shifts. Since Ashley desired to recognize his S a b b a th on Saturday, but was willing to work every Sunday, this would perfectly c o m p l i m e nt W o o te n, who wished to recognize her Sabbath on Sunday, but would b e willing to work every Saturday. In sum this Court finds that Sheriff Chafin cannot demonstrate that a voluntary s w a p for Ashley would have amounted to an undue hardship, therefore he is not e xc us e d from his requirement to offer a reasonable accommodation.

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E . Section 1983 Claim 1 . Prima Facie Case A s hl e y claims that the Sheriff's religious discrimination violated his equal p ro te c ti o n rights under the Fourteenth Amendment of the Constitution. Ashley b ro ug ht this action pursuant to 42 U.S.C. § 1983 to enforce these rights because S e c ti o n 1983 serves as a basis for relief of federal law violations under the color of s tate law. W h i ti n g v. Jackson State University, 616 F.2d 116, 121 (5th Cir. 1980).8 "Ins o fa r as it is used as a parallel remedy for transgression of . . . Title VII rights, the e l e m e nts of the causes of action do not differ." Id. "W he n section 1983 is used as a parallel remedy for [a] violation . . . to Title VII, the elements of the two causes are the same." Underwood v. Perry County Comm'n, 431 F.3d 788, 793 (11th Cir. 2 0 0 5 ) ( c i ti ng Hardin v. Stynchcomb, 691 F.2d 1364, 1369 n. 16 (11th Cir. 1982)). C o ns e q ue ntl y , Ashley's Section 1983 claim prevails for the same reason Ashley's T i tl e VII accommodation claim does, because there are genuine issues of material fa c ts that remain unresolved. 2 . Sovereign Immunity against Monetary Awards T he Sheriff's Office claims that when acting as an employer it is covered by s o v e r e i g n immunity, which bars Ashley from recovering any possible Section 1983

In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent the decisions of the Fifth C i rc ui t rendered prior to October 1, 1981. 25

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m o ne ta ry awards. The Eleventh Amendment provides immunity by restricting the fe d e ra l courts' judicial power: "The Judicial power of the United States shall not be c o ns true d to extend to any suit in law or equity, commenced or prosecuted against o ne of the United States by Citizens of another State, or by Citizens or Subjects of a ny Foreign State." U.S. Const. amend. XI. The Eleventh Amendment protects a s ta te from being sued in federal court without the state's consent.9 Manders v. Lee, 3 3 8 F.3d 1304, 1308 (11th Cir. 2003). To receive Eleventh Amendment immunity, a defendant need not be labeled a "State officer" or "State official," but instead need only be acting as an "arm of the S ta te ," which includes agents and instrumentalities of the State. Regents of the U ni v . of Cal. v. Doe, 519 U.S. 427, 429-430 (1997). In other words, the issue is not w he the r the sheriff acts for the county or state "in some categorical, `all or nothing' m a nne r;" rather the issue requires attention to the sheriff's role "in a particular area, o r on a particular issue." McMillian v. Monroe County, 520 U.S. 781, 785-786 (1 9 9 7 ).

"Although the express language of the [Eleventh] [A]mendment does not b a r suits against a state by its own citizens, the Supreme Court has held that an unc o ns e nti ng state is immune from lawsuits brought in federal court by the state's o w n citizens." Carr v. City of Florence, 916 F.2d 1521, 1524 (11th Cir. 1 9 9 0 )(ci ting Hans v. Louisiana, 134 U.S. 1(1890)).

9

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T he issue of whether an entity is an "arm of the State" for Eleventh A m e nd m e nt purposes is ultimately a question of federal law. Manders, 338 F.3d. a t 1309. But the federal question can be answered only after considering provisions o f state law. Id. In Eleventh Amendment cases, the Eleventh Circuit uses four fa c to rs to determine whether an entity is an "arm of the State" in carrying out a p a rti c ul a r function: (1) how state law defines the entity; (2) what degree of control t h e state maintains over the entity; (3) where the entity derives its funds; and (4) w ho is responsible for covering judgments against the entity. Id. at 1319; see also M i c c o s uk e e Tribe of Indians of Fla. v. Fla. State Athletic Comm., 226 F.3d 1226, 1 2 3 1 -3 4 (11th Cir. 2000). In applying the first factor to this case, the Court finds that the Brooks County S he ri ff's Office is a State body.1 0 In Manders, the court reviewed Georgia law and

Georgia's Constitution grants the State legislature the exclusive authority to establish and to control a sheriff's powers and duties. Ga. Const. art IX § 1, ¶ 3 (a )-(b ). The sheriff's office is a separate constitutional office independent from the County and its governing body. See Ga Const. art IX. § 2, ¶1(c)(1); see also M a nd e r s , 338 F.3d at 1310. The sheriff is an elected, constitutional officer; he is s ub j e c t to the charge of the General Assembly and is not an employee of the c o unty commission. See Chafin v. Calhoun, 262 Ga. 202 (1992); see also M a nd e rs , 338 F.3d at 1310.

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d e te rm i ne d that the "sheriff's obligation to administer the jail [is] directly derived fro m the State and not delegated through the county entity." Id. This Court

c o nc l ud e s that the requirement to "administer" the jail would certainly include e m p l o y m e nt and staffing decisions. A p p l y i ng the second factor, this Court finds that the State maintains a majority o f control over the Sheriff's Office. See Id. at 1322 (finding that "because of the S ta te 's direct and substantial control over the sheriff's duties, training, and discipline a nd the county's total lack thereof, this control factor also weighs heavily in favor of [the sheriff being] entitle[d] to Eleventh Amendment immunity"). Applying the third factor, the Court finds that, while the Sheriff's Office c o l l e c ts a majority of its funding from Brooks County, this does not allow Brooks C o unty any control over the Sheriff's Office. Id. at 1323-1324. Indeed, the Georgia C o ns ti tuti o n prevents Brooks County from taking any action affecting the Sheriff's O ffic e or its personnel. Id. Additionally, the state does provide some funding for the S h e ri ff's Office. Id. at 1323. For instance, the state provides funding for the annual tra i ni ng of sheriffs, for the Governor's disciplinary procedure over sheriffs' use of e xc e s s i v e force, and for the housing of some state prisoners in county facilities und e r the sheriff's supervision. Id. The court in Manders held that, despite the fact tha t a majority of the funding came from the county, because of the total control of the state over the over the sheriff's office and the fact that the state does provide

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s o m e funds, the "state involvement is sufficient to tilt the third factor of the Eleventh A m e nd m e nt toward immunity." Id. at 1324. A p p l y i n g the fourth factor is more problematic than applying the other three fa c to rs . First, "Georgia courts speak with unanimity in concluding that a defendant c o unty cannot be held liable for the tortious actions or misconduct of the sheriff or hi s deputies and is not required to pay resulting judgments." Id. at 1326.

F urt h e r m o r e , Georgia courts have held that counties are not liable, and are not re q ui re d to give sheriffs money to pay, judgments against sheriffs in civil rights c a s e s . Id. Additionally, the Georgia Supreme Court held that the county has no d uty to furnish a sheriff with money to settle a civil rights judgment entered against hi m . Id. at 1326-27. However, the Manders court could "locate no Georgia law e xp r e s s l y requiring the state to pay an adverse judgment against [a sheriff] in his o ffi c i a l capacity." Id. at 1327. The Manders court reasoned that if any party takes a n adverse judgment against the Sheriff's Office, any funds used to pay the j ud g m e nt would come from the Sheriff's Office's general budget. See Id. at 13261328. Despite the fact that the state would not be liable for a judgment entered

a g a i ns t a sheriff in his official capacity, the Manders court held that Eleventh A m e nd m e nt analysis "is not limited to who foots the bill, and, at a minimum, the l i a b i l i ty -fo r-a d v e rs e -j ud g m e nt factor does not prevent [a sheriff's] immunity claim." Id . at 1328.

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T hi s Court finds that all four factors weigh in favor of finding Sheriff Chafin is a n arm of the State in relation to making employment decisions for the Sheriff O ffi c e .1 1 Therefore, the Brooks County Sheriff's Office is entitled to sovereign i m m uni ty from any Section 1983 monetary award for the purposes of this case. III. CONCLUSION F o r the foregoing reasons, Defendants' Motion to Dismiss the Brooks County S heri f f 's Office from all claims is granted; Defendant's Motion for Summary J ud g m e nt on Title VII Disparate Treatment Claim is granted; Defendant's Motion for S u m m a ry Judgment for Title VII Failure to Accommodate Claim and Section 1983 e q ua l protection claim are denied; Defendant's motion to bar Section 1983 m o ne ta ry damages is granted. SO ORDERED, this the 23rd day of September, 2009.

/s/ Hugh Lawson HUGH LAWSON, Senior Judge bgb

This Court notes that Manders only considered the narrow function of "e s ta b l i s hi ng use-of-force policy at the jail," and the Eleventh Circuit explicitly d e c l i ne d to decide whether county sheriffs are arms of the State for any of their o the r specific duties. Manders, 338 F.3d at 1319. 30

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