Small v. Memphis-Shelby County Airport Authority et al
Filing
172
OPINION AND ORDER FOLLOWING NON-JURY TRIAL. Signed by Judge Jon Phipps McCalla on 12/2/2015. (McCalla, Jon)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
ROSALYN SMALL,
Plaintiff,
v.
MEMPHIS-SHELBY COUNTY AIRPORT
AUTHORITY and M. CHAD BEASLEY,
in his individual capacity,
Defendants.
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No. 2:13-cv-02437-JMP-dkv
OPINION AND ORDER FOLLOWING NON-JURY TRIAL
Plaintiff Rosalyn Small (“Plaintiff” or “Small”) brings
this action against Memphis-Shelby County Airport Authority
(“MSCAA” or “the Airport Authority”) and M. Chad Beasley
(“Beasley”) pursuant to the Constitution of the United States
and 42 U.S.C. § 1983, Title VII of the 1964 Civil Rights Act, as
amended 42 U.S.C. § 2000e-2, and the Americans with Disabilities
Act, 42 U.S.C. § 12101 et seq. (2nd Am. Compl. ¶ 1, ECF No. 59.)
The Court held a bench trial in this case over the course
of five days between August 17, 2015, and September 2, 2015.
(ECF Nos. 164-166, 168, 170.)
David Sullivan.
Plaintiff was represented by
Defendant MSCAA was represented by Todd
Photopulos and Diana Comes.
Defendant Beasley was represented
by Clarence Halmon, and Sasha Gilmore.
Plaintiff called the
following witnesses: Karen Davis, Craig Elliott, Derek Dean (by
deposition excerpt), Sgt. Mark Lott (by deposition excerpt),
Julie Ann Stewart (by deposition excerpt), and herself.
Plaintiff also testified in rebuttal and called George Mabon.
(See Ex. List, ECF No. 171; Corrected Witness List, ECF No.
172.)
Defendant MSCAA called the following witnesses: Derek
Dean, Mark Lott, M. Chad Beasley, Julie Stewart, Tim McCarroll,
Jerry Brandon, and, in surrebuttal George Mabon.
ECF No. 171; Corrected Witness List, ECF No. 172.)
(See Ex. List,
Defendant
Beasley called no witnesses and submitted no exhibits.
For the reasons set forth below, the Court finds that (1)
Plaintiff failed to prove by a preponderance of the evidence
that she was subject to a hostile work environment based on sex
by MSCAA; (2) Plaintiff failed to prove that she was the victim
of sex discrimination by MSCAA; (3) Plaintiff failed to prove
that MSCAA violated her procedural due process rights; (4) MSCAA
has proven that the FFDE referral was job-related and consistent
with business necessity; (5) Plaintiff failed to prove that
MSCAA unlawfully retaliated against her under the ADA; and (6)
Beasley is entitled to qualified immunity as to all of the
claims against him.
I. FINDINGS OF FACT
A. Stipulated Facts
Below are the stipulated facts from the Joint Pretrial
Order:
2
a.
At the time of her termination, Plaintiff was a
Sergeant.
b.
Mr. Beasley was employed by Defendant MSCAA from
May 31, 2010 to April 29, 2013, during which time
he was the Chief of Police for Defendant MSCAA.
c.
Plaintiff was issued written discipline from her
supervisor, Lt. Mark Williams, on November 30,
2011.
d.
Plaintiff was relieved of duty on May 3, 2012.
e.
Plaintiff was issued a Notice of Decision on May
18, 2012, sustaining the charges against her,
suspending her for nine days.
f.
Plaintiff
was
issued
a
Notice
of
Decision
sustaining the charges against her and notifying
her that her employment was terminated effective
July 3, 2012.
(Joint Pretrial Order at 12.)
B. Testimony and Evidence Introduced During Trial –
Plaintiff’s Case
1. Captain Karen Davis
Plaintiff’s first witness, Karen Davis, is currently a
Captain at MSCAA.
She testified that she had been employed by
MSCAA for twenty-one years and that she was promoted to Captain
in 2009.
Williams.
As Captain, she supervised both Sgt. Small and Lt.
Capt. Davis testified that Small’s job performance
was “excellent” and that she had encouraged Small to seek
further promotion.
She further testified that many of Williams’
subordinates found him difficult to talk to.
She explained that
she had identified “Communication Skills” as an area for
development for Williams based on his “argumentative” delivery
3
style and “tend[ency] to talk over those with conflicting
opinions.”
(See Ex. 2 at 4.)
While Davis could not recall a situation where Williams was
disrespectful to a male supervisor, she testified that Williams
had been disrespectful to her.
Specifically, Davis testified
that she had disciplined Williams after she requested that he
complete the evaluations for his subordinate officers and he
refused and responded in a distasteful and arrogant manner.
Davis issued Williams a written reprimand for this incident, but
Williams was not suspended.
Additionally, Davis testified that
Williams appealed her written reprimand and made untruthful
accusations about her in the appeal.
The official response to
Williams’ appeal, a letter drafted by Davis and signed by Chief
Beasley, found Williams’ claims to have no merit, but Williams
was not subject to further discipline for making false charges.
Capt. Davis further testified that she held a meeting with
Lt. Williams, Sgt. Small, Capt. Johnson, and Capt. Dean.
She
testified that the attenuated relationship between Small and
Williams was affecting the shift to the extent that she felt she
needed to hold a meeting, but not necessarily to take further
steps.
At this time, Davis could not separate them herself
because she was not the patrol supervisor, but she suggested to
Beasley and Dean that Williams and Small should be separated.
4
Davis testified that she was not aware of any sexual harassment
of Small by Williams at the time she held the meeting.
Defendant MSCAA’s cross-examination of Davis was focused on
the positive aspects of Davis’s evaluation of Williams and the
relationship conflict between Small and Williams.
Davis
testified that Small had once complained to Davis that Williams
was “harassing” Small because Williams had given her multiple
write-ups on the same day.
Davis acknowledged, however, that
she never saw Williams sexually harass Small, ask for Small’s
phone number, or ask Small to go on a date.
Davis testified
that she told Small to take her complaints to Chief Beasley
because Davis was not assigned to patrol.
Davis also suggested
that Small pick a different shift to get away from Williams.
On cross-examination by counsel for Defendant Beasley,
Davis further testified that she has an obligation as an officer
to follow up if someone reports sexual harassment to her.
Davis
never reported any allegations of sexual harassment against
Beasley, never received reports of sexual harassment against
Beasley, and
never saw Beasley act in a sexual manner toward
Small.
On re-direct, Davis testified that she had seen Beasley hug
individuals at the airport and that Beasley had also hugged her.
Davis had not, however, seen him hug male employees.
She
further testified that she found Williams to be disagreeable
5
with respect to both males and females.
Davis testified that
Small was a great worker and that there is no reason why Small
should not be reinstated.
2. Officer Craig Elliott
Plaintiff’s second witness was Officer Craig Elliott.
Elliott testified regarding Sgt. Small’s appearance at the roll
call on May 3, 2012.
Specifically, Elliott testified that, on May 3, 2012, he
stood next to Sgt. Small during the roll call.
He testified
that Small was to his left, sitting in a chair, with her hand to
her head.
Elliott thought it looked like Small had a headache,
and that he did not see her crying.
He further testified that
he did not think Sgt. Small appeared emotionally unstable.
He
prepared an inter-departmental memo on his observations on May
5, 2012.
On cross-examination by counsel for MSCAA, Officer Elliott
acknowledged that he had noted Small’s appearance as “agitated”
in his memo.
Elliott also acknowledged that, at the CSC
Hearing, he testified that Small had looked “pissed.”
Elliott
testified that when Beasley read off Sgt. Small’s name in
announcing the awards, Small did not seem to hear him and that
Williams had to repeat her name before she looked up.
Elliott
did not see Beasley and Small interact during the roll call.
6
On cross-examination by counsel for Beasley, Elliott
acknowledged that he has remained in the same rank of Officer
with MSCAA for over ten years.
On re-direct, Elliott explained that there was no assigned
seating during roll call and that there was nothing unusual
about Sgt. Small sitting in the back of the room.
3. Captain Derek Dean (by deposition)
Plaintiff’s third witness was Derek Dean, testifying by
excerpt from his February 7, 2013 deposition.
as a Captain by MSCAA in 2012.
Dean was employed
Dean testified that Small was
respected at MSCAA and that he had no problem with her returning
to work.
Dean further testified that the tension between
Williams and Small was longstanding and that Small would
sometimes get teary-eyed when Williams was mentioned.
Dean also
acknowledged that he never recommended that Williams be
suspended, although he had seen Williams behave in the manner in
which Small behaved during the May 3, 2012 meeting.
Counsel for Defendant MSCAA cross-designated an excerpt
from Dean’s deposition, in which Dean testified that Williams
did not have an angry tone during the May 3, 2012 meeting.
4. Sergeant Mark Lott (by deposition)
Plaintiff’s fourth witness was Mark Lott, testifying by
deposition excerpt.
Lott’s testimony concerned his personal
knowledge of the events of May 3, 2012.
7
Lott testified that
during the meeting on May 3, 2012, Small giggled in response to
an order from Williams.
According to Lott, giggling was not
appropriate in this situation.
Lott further testified that,
when Williams tried to explain where patrol vehicles should be
parked, Small started getting angry and engaged in an argument
with Williams.
Lott explained that this situation was not new
and that Williams and Small have always “been at each other.”
With respect to the May 3, 2012 roll call, Lott testified that
he observed Small with her face in her hands and, after Williams
handed her a ribbon, wiping her eyes.
According to Lott,
insubordination is a very serious offense.
5. Julie Stewart (by deposition and CSC hearing
excerpt)
Plaintiff’s fifth witness was Julie Stewart, testifying by
both deposition excerpt and CSC hearing excerpt.
Stewart is
currently employed as the Manager of Human Resources for MSCAA
and was in that role in 2012.
At her deposition, Stewart
testified that MSCAA did not have guidelines for referring
employees to a FFDE or for determining employees’ rights during
a FFDE.
She testified that MSCAA had no rule that prohibited
Small from recording the FFDE and that no individual at MSCAA
told Small that she could not record the FFDE.
At the CSC hearing, Stewart again testified that MSCAA did
not have a policy on recording a FFDE interview.
8
Stewart
explained that she expected Small to pass the FFDE and return to
work.
Counsel for Defendant MSCAA cross-designated an excerpt
from Stewart’s CSC hearing testimony, in which Stewart explained
that a FFDE referral must be job-specific.
6. Chief M. Chad Beasley (by deposition)
Plaintiff’s sixth witness was M. Chad Beasley, testifying
by excerpt from his March 19, 2015 deposition.
Beasley
testified that he did not know the factors for referring an
officer to a FFDE.
With respect to the incident involving
Williams and Davis, Beasley testified that, although he found
Williams to be insubordinate, Beasley did not think it was
appropriate to refer Williams to a FFDE.
Beasley further
testified that he remembered the roll call on May 3, 2012, but
that he could not recall where Small was seated.
He testified
that, after the roll call, Dean and Lott informed him that Small
was crying during the roll call and that they believed she was
emotionally unstable.
Beasley also testified regarding the consequences to Small.
Beasley could not recall the conversation where the decision was
made to refer Small to a FFDE.
Beasley also could not recall
another instance where he suspended an officer for
insubordination or unbecoming conduct.
9
Counsel for Defendant MSCAA cross-designated excerpts from
Beasley’s deposition.
Beasley clarified that the factors he
would consider in referring an officer to a FFDE include whether
the officer is exhibiting bizarre behaviors, whether the officer
appears to be a threat to him or herself or a threat to others,
and whether the officer is able to make sound decisions.
Beasley further testified that the decision to refer Small to a
FFDE was not determined before her hearing.
He explained that
the decision was a collaborative effort between him, Human
Resources, and Greaud.
7. Sergeant Rosalyn Small
Plaintiff Small was the final witness presented in
Plaintiff’s case-in-chief.
Small was employed as a Sergeant by
MSCAA from November 1999 until her termination in July 2012. On
direct examination, Small testified on four main points: (1) her
relationship with Lt. Williams; (2) her interactions with Chief
Beasley; (3) her disciplinary record in 2011 and 2012; and (4)
the FFDE.
Small testified that she had a bad relationship with
Williams.
Specifically, she explained that he was argumentative
and tried to tell her that she did not know what she was doing.
Small further testified that beginning around May 2010, Beasley
began greeting her by hugging her.
In January or February 2010,
Small asked Beasley to stop hugging her.
Small testified that
after she made this request, Beasley tried to give her a “side
10
hug.”
After she asked that he not do this, Beasley stopped
hugging her altogether.
Small explained that she had worked on the “C-shift” prior
to May 2010.
At that point, she was reassigned to the day shift
to assist MSCAA in applying for reaccreditation by the
Commission on Accreditation for Law Enforcement Agencies
(“CALEA”).
While Small was on temporary reassignment, Williams
was assigned to the C-shift, and when she returned to the Cshift, Williams was her immediate supervisor.
According to
Small, in the summer of 2011, there was an incident where
Williams told Small that she did not know what she was doing in
front of a subordinate officer, Officer Stubbs.
Additionally, in November 2011, Williams gave Small a
written reprimand for insubordination.
According to Small, she
had apprehended a passenger who had a gun.
Small testified that
the MSCAA protocol is to arrest out-of-town passengers if they
have a gun.
Because it was the day before Thanksgiving,
however, Small asked Williams if she could just give the
passenger a misdemeanor citation so that the passenger could go
home for Thanksgiving, but Williams instructed her to arrest the
passenger.
When Small wrote up the arrest, she did not charge
him with unlawful possession.
Williams issued a written
reprimand for insubordination because Small failed to put the
charge of unlawful possession on the arrest ticket.
11
According
to Small, a written reprimand such as the one issued to her,
prevents an officer from being considered for a promotion for a
year.
Small tried to appeal this reprimand, but her appeal was
denied by George Mabon.
She then re-appealed, and her second
appeal was still pending at the time of her termination in 2012.
Small further testified that, in January 2012, she sent a
letter to Julie Stewart alleging that “Lt. Williams has been
behaving in a hostile, harassing and intimidating way.”
at 1.)
(Ex. 7
As a result of this letter, both Small and Williams were
referred to the Employee Assistance Program (“EAP”) for
counseling.
(See Ex. 45)
With respect to May 3, 2012, Small testified that Lt.
Williams gave her two orders.
First, Williams told her to tell
Unit 6-5 not to patrol Wilson Air.
According to Small, she had
seen Williams at Wilson Air on the computer and watching TV, and
she giggled in response to Williams’ order.
Small testified
that, despite giggling, she complied with the order and wrote it
down on the daily shift roster.
(See Ex. 9.)
Second, Williams
directed Small not to park on the west side of the building.
Small testified that she asked him why, because planes had not
been “coming over there” since August 2011.
According to Small,
Williams told her to lower her voice, and Small responded that
her voice was not raised.
Williams then located Capt. Dean and
12
asked him to observe the meeting.
Toward the end of the
meeting, Williams told Small that he was going to write her up.
After this meeting, Small went to the roll call.
Small
testified that she sat in the back and that there are no
assigned seats at the roll call.
She testified that she was a
little upset that Williams told her that he was going to write
her up, but that she was not crying at the roll call.
She
further testified that after the roll call, she went to her
assignment at the terminal for about twenty minutes, after which
someone called for her to go back to Capt. Dean’s office.
Beasley then told her that they were sending her home on
administrative leave because they were concerned about her
fitness for duty.
Small testified that Beasley did not ask her
if she was crying before sending her home.
With respect to the meeting with Lisa Alex, Ph.D., on June
20, 2012, Small testified that she wanted to record their
conversation because she had previously been written up for her
tone and demeanor, so she wanted an objective record of their
conversation.
Small further testified that Dr. Alex refused to
do the FFDE interview if it was going to be recorded, unless she
was instructed otherwise.
Small understood this to mean that if
MSCAA told Dr. Alex that Small could record the interview, then
recording it would be permissible.
therefore put the FFDE on hold.
Small testified that they
After this meeting, Small
13
received a letter from Beasley dated June 21, 2012, terminating
her salary and scheduling a hearing for June 28, 2012.
(See Ex.
20.)
On cross-examination, Small acknowledged that her November
2011 written reprimand pertained not only to the incident with
the passenger, but also to an incident on November 24, 2011,
where Small requested to leave early.
After Williams told her
she could not leave early, she told him that she was sick, and
he then permitted her to leave.
She further acknowledged that
she did not raise the issue of sexual harassment when she
appealed her write-up on December 7, 2011.
(See Ex. 40.)
She
agreed that she also did not raise the issue of sexual
harassment when she filed her harassment complaint on January
10, 2012.
(See Ex. 7.)
Additionally, Small disagreed that she
interrupted Williams during the meeting on May 3, 2012, but
acknowledged that Dean reported that she did (see Ex. 49).
Small testified that she did not understand her FFDE referral to
be an “order,” but acknowledged that she understood it was not
optional.
Small further testified that she was never given an
“order” to complete the FFDE, but that she was told she needed
to cooperate, that she was told she needed to participate, and
that she was told she needed to take the FFDE if she wanted to
return to duty.
14
On re-direct, Small testified that she failed to complete
the FFDE because Dr. Alex did not ask her the interview
questions or give her the test.
Small also clarified that
although she understood she was given a directive to complete
the FFDE, a directive is different than an order.
According to
Small, failing to follow an order is grounds for charges for
insubordination while failing to follow a directive is not.
C. Testimony and Evidence Introduced During Trial – The
Defense Case
8. Captain Derek Dean
MSCAA’s first witness was Derek Dean.
In 2011 through
2012, Dean was employed by MSCAA as a Captain.
to Chief around September or October 2013.
from MSCAA.
He was promoted
He has since retired
Dean testified that, in 2011, he reported to Chief
Beasley, Lt. Williams reported to Capt. Dean, and Sgt. Small
reported to Lt. Williams.
He acknowledged that there was
friction between Williams and Small, and he testified that he
had spoken with Small about choosing a different shift on two
occasions.
Dean also testified regarding a meeting he had with
Small and Davis on January 5, 2012.
On that date, Dean met with
Small because he was concerned with Small’s change in attitude
and change in behavior and the atmosphere between Small and
Williams.
According to Dean, Small and Williams’ conflict was
creating a problem within the shift and he was concerned with
15
Small’s ability to follow Williams’ orders.
Dean testified that
the problems between Williams and Small were not related to
gender and that Small never complained about sexual harassment
by Williams or Beasley.
With respect to the November 2011 incident, Dean testified
that he reviewed Sgt. Small’s appeal and found that Williams was
following policy as to what charges should be on the arrest
ticket and that Small did not follow Williams’ instruction.
Dean further testified that there is no distinction between a
directive and an order.
With respect to the May 3, 2012 incident, Dean testified
that Williams came to Dean’s office and asked him to observe the
meeting in the Supervisor’s Office.
When Dean went to the
Supervisor’s Office, he observed Small calling Williams’
directive “stupid” and becoming loud and disruptive.
Dean
testified that she continued to interrupt Williams and ask “why”
every time he attempted to explain the order.
Dean further
testified that he asked Small to let Williams finish but she
would not do so.
Dean ended the meeting and testified that he
anticipated continuing the meeting in his office after the roll
call.
During the roll call, Dean testified that he observed
Small rubbing her eyes as if she were crying and burying her
face in her hands.
Dean also heard another officer yell that
Small was crying.
According to Dean, Small appeared unable to
16
compose herself during the meeting.
Dean testified that after
the meeting, Dean asked Beasley to speak with him because he was
concerned about Small’s range of emotions and felt that her
emotional state in combination with the fact that she had a
loaded weapon and the tense relationship between her and
Williams was “not a good mix.”
On cross-examination, Dean explained that he found Small’s
behavior at the May 3, 2012, meeting to be aggressive, but not
threatening.
He clarified that her behavior at the meeting
alone did not cause him to be concerned about Small’s emotional
state.
Dean further testified that it looked like she was
crying at the roll call that day and that he became concerned
about Small’s emotional state after this observation because it
“brought it full circle.”
Dean also testified regarding
incidents involving Officers Billy Stubbs and Derek Brauer where
they were reprimanded for acting aggressively or questioning
orders.
(See Exhs. 52, 53.)
On re-direct, Dean further clarified that although Small
was not yelling when he entered the Supervisor’s Office on May
3, 2012, she rose to the point of yelling over the course of the
meeting.
He testified that he told Small to “calm down” during
that meeting, but that Small did not obey his order.
Dean also
testified that he considers laughing or repeatedly asking “why”
in response to an order to be insubordination.
17
Dean explained
that, although he was aware of the incidents involving Officers
Brauer and Stubbs, he did not see those officers exhibit a range
of emotions over a short period of time as Small had, and they
were not referred to a FFDE.
9. Sergeant Mark Lott
Defendant MSCAA’s second witness was Mark Lott.
Lott is
currently employed by MSCAA as a Sergeant and has been in that
position since January 2010.
events of May 3, 2012.
Lott’s testimony focused on the
Lott testified that he was in the
meeting with Small and Williams in the Supervisor’s Office that
day.
He explained that it was uncommon, but not unheard of, for
Williams to call the sergeants in before roll call.
Lott
testified that when Williams started giving the directive about
patrolling a certain location, Small started giggling.
When
Williams asked Small if there was something funny, she continued
to laugh.
Lott testified that he found Small’s conduct to be
disrespectful.
Lott further testified that when Williams
continued to give the directive, Small interrupted him and
repeatedly asked “why.”
increasingly aggressive.
According to Lott, Small got louder and
Lott testified that when Williams left
the room to get Dean, Lott told Small that she was being
disrespectful and inappropriate, but Small acted as if she did
not hear him.
18
During roll call, Lott observed Small sitting in the back
of the room.
Lott testified that it appeared that Small was
getting emotional and starting to cry.
After the roll call,
Lott was approached by Williams to meet in Beasley’s office.
Lott testified that he told Beasley that he did not think that
Small was “in her right mind” at that time based on her varying
emotional states.
Lott further testified that he observed Small
after Beasley sent her home and that she was yelling, “Let me
out of this motherfucking place.”
On examination by counsel for Defendant Beasley, Lott
explained that he did not make a recommendation about Small’s
ability to work on May 3, 2012, but that he told Beasley only
that Small was not “in her right mind.”
Lott further testified
that he never saw Beasley hug Sgt. Small, but that it was not
uncommon for officers to give each other “bro-hugs.”
On cross-examination, Lott acknowledged that he described
Small’s behavior as “arguing” rather than “yelling” when he
testified at the CSC hearing.
Lott also acknowledged that he
used the word “crying” instead of “sobbing” in his memorandum
and at the CSC hearing.
On re-direct, Lott testified that he did not think that
Small was fit for duty on the evening shift of May 3, 2012.
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10. Chief M. Chad Beasley
Defendant MSCAA’s third witness was M. Chad Beasley, who
was employed as Chief of Airport Police at MSCAA between May
2010 and April 2013.
Beasley’s testimony focused on his role in
Small’s disciplinary incidents and the hearings.
Beasley also
emphasized the importance of following direct orders in a paramilitary setting.
He explained that there is no difference
between a directive and an order.
With respect to the November 2011 reprimand, Beasley
reviewed Williams’ written reprimand and determined that Small
had failed to adhere to a direct order.
In February 2012, when
Small claimed that she was harassed in relation to the incident,
Beasley testified that the investigation was turned over to
Human Resources.
Beasley testified that he met with Mabon and
gave a statement regarding the incident; Mabon upheld the
written warning that Williams had given Small, and Beasley
considered the matter concluded at that point.
In April 2012,
however, Beasley held another meeting with Small and Dean
regarding the incident.
Beasley testified that Small was heated
and “blowing off steam” during this meeting, but that he did not
issue a written reprimand for her conduct in this meeting.
With respect to the events of May 3, 2012, Beasley
testified that he does not recall speaking with Small or seeing
her in the roll call.
He further explained that the command
20
staff, including sergeants, normally stands in the front of the
room.
Beasley testified that immediately after the roll call,
Dean came to Beasley’s office to express concern over a meeting
that took place prior to the roll call.
As communicated to
Beasley, during that meeting, Williams was trying to convey a
simple order while Small was laughing, talking over him, getting
upset, and being insubordinate.
Dean expressed to Beasley that
Small was exhibiting a range of emotions.
Beasley also spoke
with Williams and Lott because they had also been in that
meeting.
Beasley testified that Williams and Lott were also
very concerned and that nothing they said made him doubt their
truthfulness.
Beasley explained that Small had previously been
referred to EAP for anger management, and that based on her
emotional state, he had a duty to respond to protect Small and
the traveling public.
Beasley also testified that he participated in the internal
hearing on May 16, 2012.
The panel in this hearing was composed
of Beasley, Julie Stewart, Dean, and then-Sgt. Tim McCarroll.
Beasley explained that Small had the opportunity to present her
point of view at the hearing.
According to Beasley, there was
no determination of the outcome prior to the hearing; he did not
do anything to affect the votes; and the panel voted to sustain
the charges after a deliberation process.
Beasley further
testified that, after the charges were sustained, he made the
21
disciplinary decision in consultation with Human Resources and
Vice President of Operations John Greaud.
They decided to send
Small for a FFDE because they wanted to make sure she was
emotionally stable and could return to fulfill her duties.
Beasley testified that he was informed by Stewart that
Small did not complete the FFDE despite multiple orders to do
so.
As a result, there was a second panel on June 28, 2012.
This panel was composed of Beasley, Stewart, Darlene Nelson, and
Sgt. Jerry Brandon.
Beasley testified that there was no meeting
or decision regarding the outcome prior to the hearing and that
he did not do anything to influence the panel’s vote.
The panel
unanimously voted to sustain the charges, and the group of
Beasley, Stewart, Mabon, and Greaud decided the level of
discipline to be imposed.
Beasley explained that they
ultimately decided to terminate her based on her failure to
complete the FFDE and her insubordination.
With respect to Small’s allegation that Beasley hugged her,
Beasley testified that this allegation is “totally false.”
He
further testified that he never saw Williams harass Small, that
he never saw Williams treat Small differently from anyone else,
and that Small never complained that Williams was harassing her.
On direct examination by his own counsel, Beasley explained that
there was no particular reason why he did not hug Small, but
maintained that he did not hug her.
22
He further clarified that
he never made sexual or derogatory remarks to or around Small.
Beasley testified that if Small had successfully completed the
FFDE, she would have been able to return to work.
On cross-examination, Beasley testified about the incident
involving Williams and Davis.
Beasley understood this incident
to involve incomplete performance reviews.
After Davis issued
Williams a written reprimand, Williams came to Beasley’s office
and gave him a letter that accused Davis of abuse of authority,
unethical behavior, and unprofessional conduct.
Beasley found
that these statements had no merit and sent Williams a letter to
that effect on June 28, 2011.
With respect to the May 3, 2012,
incident, Beasley testified that his concern with Small was her
emotional instability, pattern of insubordination, and recent
referral to EAP for anger management.
He testified that he made
the decision to suspend Small in consultation with Stewart,
Mabon, and Greaud.
Additionally, Beasley acknowledged that while there was no
policy that prohibited Small from sitting in the back during
roll call, there was an expectation that the command staff stood
in the front.
Beasley explained that he did not personally see
Small crying at the roll call, and that he relied on the other
officers who told him that Small was crying or appeared to be
crying.
Beasley reiterated that it was not just one variable
that caused him to refer Small to a FFDE, but the fact that
23
Small exhibited a range of emotions and that, based on the
information he received, he was not sure she could make sound
decisions and judgments.
Beasley further testified that Small
violated a direct order by not complying with the FFDE in its
entirety and that she exhibited unbecoming conduct, bringing the
department in disrepute, by failing to follow direct, basic
orders.
On re-direct, Beasley compared the incident involving
Williams and Davis to the incident where Small had an outburst
in a meeting with Dean and Beasley.
According to Beasley,
Williams was being blatantly insubordinate to Davis.
On the
other hand, Small raised her voice and used profanity, but she
was not disciplined.
Beasley also testified that he considers
laughing at a supervisor’s order and aggressively asking “why”
to be insubordinate.
11. Julie Stewart
Defendant MSCAA’s fourth witness was Julie Stewart.
Julie
Stewart has been employed by MSCAA as the Human Resources
Manager since 2008.
Stewart testified regarding her involvement
with Small’s harassment complaint and the internal panels and
disciplinary decisions.
Stewart testified that after Small
filed a complaint against Williams, Stewart and her supervisor,
George Mabon, investigated the complaint.
As part of the
investigation, Stewart met with Small and gave Small the
24
opportunity to discuss each incident.
Stewart did not find
merit as to Small’s complaint of harassment by Williams and
thought that Williams’ orders seemed logical.
Stewart testified that Small did not raise a complaint
about her gender at that time and that Small told her that she
did not feel sexually harassed by Williams.
Stewart further
testified that Small never filed a complaint that Williams or
Beasley were sexually harassing her or even that Beasley hugged
her.
Stewart testified that, based on her meeting with Williams
and Small, it was apparent that the two were having trouble
communicating, and she believed that Small needed professional
counseling.
Stewart further testified that she discussed
Small’s anger toward Williams and anger about being written up.
Stewart met with Small again along with Beasley and Mabon in
Mabon’s office.
Stewart testified that, after this meeting,
they decided to refer Small and Williams to the Employee
Assistance Program (“EAP”) to deal with anger issues.
Stewart found out about the May 3, 2012, incident when she
received a call from Beasley.
Stewart testified that Beasley
conveyed the events of that day and informed Stewart that he had
relieved Small from duty.
Stewart explained that she
administratively handled the hearing processes and served on the
panel for both hearings.
Stewart corroborated earlier testimony
about the hearing and disciplinary processes.
25
Stewart further
testified that the purpose of discipline is to change a
behavior; because they had already referred Small to EAP, her
continued inappropriate behavior required something more strict.
Stewart testified that, with respect to the May 16, 2012, and
June 28, 2012, panels, neither Small’s gender nor her ADA
complaint had anything to do with the decisions to sustain the
charges against her or to take disciplinary action.
On examination by counsel for Defendant Beasley, Stewart
also testified that Dr. Alex had sent a package to MSCAA that
included the letter Small had provided to Dr. Alex (Ex. 17) as
well as a letter to George Mabon from Dr. Alex (Ex. 58).
Stewart believed that the package arrived on June 22, 2012.
She
further testified that the panel on June 28, 2012, considered
the information in the package in the decision-making process.
On cross-examination, Stewart acknowledged that there is no
airport policy that lists the rights an employee would have in a
FFDE.
She also agreed that she did not make an effort to
overcome the impasse between Dr. Alex and Sgt. Small.
She
testified that, to her knowledge, Dr. Alex did not ask MSCAA
about the recording.
Stewart further testified that MSCAA would
have left the decision in Dr. Alex’s hands as the clinical
psychologist.
According to Stewart, the May 3, 2012, incident
and the fact that they had already referred her to EAP for anger
raised concerns about whether Small could safely carry a gun and
26
be on the front line of the airport.
Stewart testified that
they needed a professional opinion to let them know that Small
could go back to work.
Stewart testified that MSCAA has given
out suspensions longer than nine days to male employees.
On re-direct, Stewart testified that Small never asked
MSCAA if she could record the interview with Dr. Alex.
Stewart
further testified that in the letter from Small’s counsel to
MSCAA’s General Counsel, Kuhn, dated June 20, 2012, Small did
not request a new tape-recorded FFDE.
Stewart also explained
that Mabon talked to Dr. Alex at some point and that this
conversation was not relied on by the panel, but was relied on
in the discussion to discipline Small.
12.
Lt. Tim McCarroll
Defendant MSCAA’s fifth witness was Tim McCarroll.
Lt.
McCarroll was hired by the MSCAA Police Department in 1997 and
was a Sergeant in the 2011 to 2012 time frame.
McCarroll
testified that he sat on an internal hearing panel regarding
Small’s conduct on May 3, 2012.
As the lowest ranking member of
the panel, then-Sgt. McCarroll voted first and voted to sustain
the charges against Small.
He testified that he had evaluated
the testimony given at the hearing and his firsthand
recollection of the events.
McCarroll was in the hallway during
Small’s meeting in Williams’ office and heard her repeatedly
interrupt Williams and say “why” as she got progressively
27
louder.
According to McCarroll, his personal observations
contradicted Small’s testimony at the internal hearing, in which
Small denied yelling or acting in an unprofessional manner.
On cross-examination, McCarroll explained that he did not
make a memo of his observations because “I did not want anything
to do with it – I did not want to be drawn into this.”
McCarroll acknowledged that he did not tell anyone before the
hearing that he had observed the incident, but that he told the
panel members during the deliberation.
McCarroll further
testified that he did not know what Small and Williams were
discussing inside the office and did not know about the two
orders that Williams gave to Small.
On re-direct, McCarroll agreed that a lieutenant would have
the authority to give the orders that Williams gave to Small if
he thought it was relevant and for the good of the shift.
13.
Chief Jerry Brandon
Defendant MSCAA’s sixth witness was Jerry Brandon.
Brandon
is currently the Chief of the MSCAA Police Department and was a
Sergeant at the time of Small’s hearing in June 2012.
Brandon
testified that he sat on the internal panel on June 28, 2012,
regarding the charges against Small for failing to complete the
FFDE.
Brandon further testified that he had not made up his
mind before the hearing and that Small had an opportunity to
speak and present her point of view.
28
He believes that Small was
treated fairly.
As the lowest ranking member of the panel,
Brandon voted first and voted that the charges were founded.
Brandon testified that the vote was unanimous and that thenChief Beasley did not try to influence his vote.
Brandon further testified that he never saw Williams or
Beasley hug Sgt. Small, say anything inappropriate to Small,
touch Small inappropriately, tell inappropriate jokes to or
around Small, or say derogatory things to Small because of her
gender.
According to Brandon, however, Williams is a bully who
antagonizes people and “pushes their buttons.”
On cross-examination, Brandon testified that Williams has
not been an issue since Brandon became Chief.
Brandon’s
understanding of the issue relating to Small’s conduct was that
she had been told to go to a FFDE, but that she did not do the
FFDE despite going to the doctor’s office because Small was told
she could not record the session.
According to Brandon, Small’s
asking to record the session did not reflect poorly on her as a
police officer; he sustained the charge of unbecoming conduct on
the basis that she failed to submit to a fitness-for-duty
examination as ordered.
On re-direct, Brandon clarified that there was no question
that Small was ordered to complete the FFDE and no question that
she failed to do so because she insisted on its being recorded.
29
D. Testimony and Evidence Introduced During Trial –
Plaintiff’s Rebuttal Case
14.
George Mabon
On rebuttal, Plaintiff called George Mabon, the MSCAA’s
Vice President of Human Resources.
Mabon testified that MSCAA
does not have an opinion on Small’s recording the FFDE because
it was in the purview of Dr. Alex as the clinical psycholgist.
Mabon further testified that, although Small’s actions were not
terminable offenses from the beginning, after the FFDE “ordeal,”
he would have recommended terminating Small.
On cross-examination by counsel for Defendant MSCAA, Mabon
explained that Small’s termination was cumulative, based on her
actions and behavior throughout the whole process.
He agreed
that her initial behavior was forgivable, but that it got to a
point where there was insubordination and inappropriate conduct.
He explained that Small was advised that no further delays would
be acceptable and that she needed to complete the FFDE.
Based
on the psychologist’s report, Mabon’s understanding was that it
was Small’s decision not to go forward with the FFDE.
Although
Mabon was not on the June 28, 2012, panel, he was involved in
the decision to terminate Small based on her failure to complete
the FFDE.
On re-direct, Mabon testified that the decision to send
Small to a FFDE was a collaborative decision.
30
According to
Mabon, Small insisted on having the FFDE session recorded, but
Dr. Alex refused to proceed with the examination under that
condition.
Mr. Mabon testified that he listened to the audio
recording of Small and Dr. Alex’s conversation, but that it does
not change the Airport Authority’s opinion that Small was not
acting in good faith at the FFDE.
While Mabon testified that
Small was not disrespectful, he believed it was unbecoming for
her to request the audio recording.
15.
Sergeant Rosalyn Small
Plaintiff called herself as her second and final witness in
rebuttal.
On rebuttal, Small testified that she had never been
given a written reprimand or been suspended before the November
2011 incident.
Small further testified that during her meeting
with Dean and Beasley in April 2012, she did not use profanity
or raise her voice.
According to Small, during the May 3, 2012,
meeting, she also did not yell or talk over Williams.
She
further testified that she did not cry or give the appearance of
crying during the roll call on May 3, 2012, and that she was
able to perform the essential job functions of Sergeant that
day.
Additionally, Small testified that she was a member of the
Crisis Intervention Team, and that she had been trained to
identify behaviors that indicate emotional distress or mental
health issues.
Small testified that giggling, laughing, talking
31
over someone, and arguing with a supervisor are not signs of
emotional distress.
On cross-examination, Small acknowledged that she was not
employed in Human Resources and did not know the Human Resources
policies.
E. Testimony and Evidence Introduced During Trial –
Defendant MSCAA’s Surrebuttal Case
16.
George Mabon
Defendant MSCAA called George Mabon for sur-rebuttal.
On
direct examination, he testified regarding the Human Resources
and Police Department policies at MSCAA.
He explained that the
Office of Human Resources has a policy regarding Loudermill
hearings, see infra pp. 42-43, and that his Office is
responsible for conducting these hearings, not the Police
Department.
This policy speaks for itself.
(Exhs. 65-66.)
On cross-examination, Mabon agreed that the Airport
Authority policy manual does not include a policy regarding the
composition of Loudermill hearing panels, but explained that
there is a practice of establishing these panels in a certain
way.
Mabon further testified that, when the Police Department
and Airport Authority policies conflict, the Airport Authority
policies are the overriding authority for MSCAA.
On re-direct, Mabon further testified that not every
procedure that the Airport Authority follows is reduced to
32
writing.
This includes the composition of Loudermill hearing
panels as well as a similar process for hiring.
He again
testified that the internal affairs division of the Police
Department does not handle due process hearings.
Findings of Fact
The Court has carefully considered the evidence presented
at trial and finds that the following facts have been
established by a preponderance of the evidence: (1) Beasley
hugged Small over the course of several months, but ceased
hugging her when she asked him to stop; (2) Small was not
subject to sexual harassment by Williams during the time period
at issue; (3) Small was not treated differently because of her
gender by any accused individual at MSCAA; (4) based on the
reports of Dean, Williams, and Lott, Beasley believed that Small
was emotionally unstable and a potential threat to those around
her; (5) MSCAA followed internal policies in providing Small
hearings regarding the charges of insubordination and unbecoming
conduct; (6) the outcome of these hearings was not predetermined
and Small had an opportunity to present her story; (7) Small’s
gender did not play a role in the outcome of the hearings; (8)
the May 16, 2012, panel sustained the charges of insubordination
and unbecoming conduct because it found that Small, over a short
period of time, laughed at an order, repeatedly questioned an
order, became aggressive in response to an order, and cried
33
after receiving a reprimand; (9) following the May 16, 2012,
hearing, MSCAA determined that the appropriate discipline was a
nine-day suspension without pay and also determined that a FFDE
was necessary to ensure that Small was psychologically fit to
return to work; (10) this decision was based on Small’s previous
referral to EAP, her recent record of insubordination, and her
erratic emotional state on May 3, 2012; (11) Small was on paid
leave from May 31, 2012, through June 21, 2012; (12) Small’s
leave was converted from paid to unpaid on June 21, 2012, based
on her failure to complete the FFDE; (13) the decision to change
Small’s leave status was a collaborative decision by Beasley,
Human Resources, and Greaud; (14) the June 28, 2012, panel
sustained the charges of insubordination and unbecoming conduct
because it found that Small failed to comply with a direct order
to complete the FFDE without additional delay; and (15)
following the June 28, 2012, hearing, MSCAA, be means of a panel
composed of Beasley, Stewart, Mabon, and Greaud, made the
decision to terminate Small based on the pattern of
insubordination as determined by the prior panels and based on
the belief that Small was unwilling to complete the FFDE.
II. CONCLUSIONS OF LAW
Small brings the following claims against MSCAA: (1)
hostile work environment claims under Title VII and 42 U.S.C.
§ 1983; (2) sex discrimination claims under Title VII and 42
34
U.S.C. § 1983; (3) procedural due process claims under 42 U.S.C.
§ 1983; (4) illegal referral to a medical examination under the
ADA; and (5) retaliatory discharge under the ADA.
Small also
brings claims against Beasley under 42 U.S.C. § 1983 on the
following bases: (1) hostile work environment, in violation of
the Equal Protection Clause; (2) employment discrimination, in
violation of the Equal Protection Clause; and (3) violations of
the Due Process Clause of the Fourteenth Amendment.
The Court
first addresses each of Small’s claims against MSCAA and then
addresses Small’s claims against Beasley.
A.
Hostile Work Environment
To prevail on a hostile work environment claim under Title
VII and the Equal Protection Clause, a plaintiff must establish
“that (1) she was a member of a protected class; (2) she was
subject to unwelcomed sexual harassment; (3) the harassment was
based on her sex; and (4) the harassment created a hostile work
environment.”
Williams v. Gen. Motors Corp., 187 F.3d 553, 560
(6th Cir. 1999) (describing the elements of a hostile work
environment claim under Title VII); see also Sharpe v. Cureton,
319 F.3d 259, 267–68 (6th Cir. 2003) (indicating that hostile
work environment claims under § 1983 share the same requirements
as such claims under Title VII).
A plaintiff must show that her
“workplace is permeated with discriminatory intimidation,
ridicule, and insult that is sufficiently severe or pervasive to
35
alter the conditions of the victim’s employment and create an
abusive working environment.”
Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993) (internal quotation marks and citations
omitted).
A hostile work environment claim includes both
subjective and objective elements: a plaintiff must “establish
that her environment was objectively hostile, and also that she
subjectively perceived the environment to be hostile.”
Williams, 187 F.3d at 564.
Small was not the subject of a hostile work environment.
As stated above, the Court finds that Small was not subject to
harassment based on sex by Williams.
Additionally, the Court
finds that Small was subject to hugs by Defendant Beasley, and
that Beasley stopped hugging Small after she asked him to stop.
While this conduct may have been subjectively hostile to Small, 1
it does not rise to the objective level of severe or pervasive
harassment.
Because Small fails to prove that her environment
was objectively hostile, she cannot establish that MSCAA created
a hostile work environment based on sex.
1
It is not clear, in fact, that this conduct was even subjectively
hostile to Small. Small presented no evidence that she complained about, or
made a fleeting mention of, Beasley’s conduct before this litigation. Even
her letter to Dr. Alex, which references an unnamed supervisor “who
instigated the disciplinary action” and “has previously made unwelcome sexual
advancements,” appears to refer to Lt. Williams, not Chief Beasley. (Ex.
17.) In this letter, Small states that she had previously filed complaints
against “this supervisor” and that one such complaint is still pending.
(Id.) While Small’s previous complaints against Williams did not relate to
sexual harassment, her statements in the letter to Dr. Alex are most
logically construed as alluding to Lt. Williams. Because the Court finds
Beasley’s conduct not to be objectively hostile, however, it need not reach
the question of whether Beasley’s conduct was subjectively hostile.
36
B.
Sex Discrimination
To establish a prima facie case of employment
discrimination under Title VII and the Equal Protection Clause,
a plaintiff must demonstrate that: (1) she is a member of a
protected class; (2) she was qualified for her job; (3) she
suffered an adverse employment decision; and (4) she was
replaced by a person outside the protected class or treated
differently than similarly situated employees.
White v. Baxter
Healthcare Corp., 533 F.3d 381, 391 (6th Cir. 2008) (describing
the requirements of establishing a prima facie case under Title
VII); Lautermilch v. Findlay City Sch., 314 F.3d 271, 275 (6th
Cir. 2003) (“[T]o prove a violation of the equal protection
clause under § 1983, a plaintiff must prove the same elements as
are required to establish a disparate treatment claim under
Title VII, i.e., under the McDonnell Douglas/Burdine
framework.”) (internal quotation marks and alterations omitted).
“Once the plaintiff establishes this prima facie case, the
burden shifts to the defendant to offer evidence of a
legitimate, non-discriminatory reason for the adverse employment
action.”
White, 533 F.3d at 391.
“Finally, if the defendant
succeeds in this task, the burden shifts back to the plaintiff
to show that the defendant’s proffered reason was not its true
37
reason, but merely a pretext for discrimination.”
Id. at 391-
92.
1.
Prima Facie Case
Small claims that she was discriminated against based on
sex in relation to her termination, as well as other
disciplinary treatment.
Small has established a prima facie
case of sex discrimination against MSCAA as to her termination
by showing that (1) she is a woman; (2) she was qualified for
her job, as evidenced by performance evaluations; (3) she
suffered the adverse employment action of termination; and (4)
she was replaced by a person outside her protected class, a male
named Barry Wilburn.
Small has not proven, however, that she was treated
differently than similarly situated male employees with respect
to any other disciplinary action, and accordingly, she has not
established a prima facie case of sex discrimination as to any
other employment action.
Plaintiff presented evidence at trial
relating to disciplinary actions taken against Officer Stubbs
(Ex. 52) and Officer Brauer (Ex. 53).
Both of these
comparators, however, were ranked “Officer,” whereas Plaintiff
was ranked “Sergeant.”
A Sergeant has different
responsibilities and greater command than an Officer, and
accordingly, cannot be considered to be “similarly situated.”
Moreover, Plaintiff did not demonstrate that either of these
38
officers had engaged in a pattern of insubordination or
exhibited a range of emotions over a short period of time.
Plaintiff also did not demonstrate that a superior officer
recommended suspension or a FFDE 2 in either of these incidents.
Accordingly, MSCAA, through its agents and employees, did not
treat these officers more favorably under circumstances that
were sufficiently similar.
Lt. Williams also cannot be considered a “similarly
situated” employee who was treated differently from Small.
The
evidence presented at trial shows that Williams received a
written reprimand for insubordination and unbecoming conduct
from Capt. Davis on June 7, 2011, based on Williams’ refusal to
comply with an order and disrespectful comments.
1-2,; Ex. 37 at 4.)
(See Ex. 3 at
Lt. Williams appealed this reprimand, and
Beasley upheld the written reprimand.
(See Ex. 3 at 3-6.)
situation nearly parallels that of Small in November 2011.
This
In
2
The Court notes that a FFDE does not necessarily constitute an adverse
employment action under Title VII and § 1983. Beasley’s letter to Small,
dated May 18, 2012, provides that Small was placed on a nine-day suspension
as discipline for the sustained charges, and that she also was required to
complete a FFDE before she would be allowed to return to duty. (Ex. 12.) An
adverse employment action is a “materially adverse change in the terms and
conditions” of a plaintiff’s employment. White v. Burlington N. & Santa Fe
Ry. Co., 364 F.3d 789, 795 (6th Cir. 2004) (en banc); see also Smith v. City
of Salem, 378 F.3d 566, 575 (6th Cir. 2004). A “mere inconvenience” or a
“‘bruised ego’ is not enough to constitute an adverse employment action.”
White, 364 F.3d at 797 (quoting Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d
876, 886 (6th Cir. 1996)). “Examples of adverse employment actions include
firing, failing to promote, reassignment with significantly different
responsibilities, a material loss of benefits, suspensions, and other indices
unique to a particular situation.” Smith, 378 F.3d at 575-76. It is not
clear that the referral to a FFDE rises to the requisite level. The Court
need not reach this question, however, because Plaintiff failed to establish
the fourth prong of the prima facie case.
39
November 2011, Small was issued a written reprimand for
insubordination, unsatisfactory performance, and neglect of duty
based on her failure to comply with an order given by Williams.
(See Ex. 39.)
Small then appealed the written reprimand to the
chain of command.
(Exhs. 40, 42, 47.)
Capt. Dean upheld the
written reprimand (Ex. 41), and Chief Beasley did the same (Ex.
43). 3
Thus, Small and Williams both received a written reprimand
for failing to follow an order, both appealed the reprimand, and
in both instances, the reprimand was upheld.
In Beasley’s
letters to both Small and Williams following their respective
appeals, he determined that the claims made in their appeal
could not be “substantiated” or “valid[ated].”
at 5.)
(Ex. 43 at; Ex 3
In neither instance was a referral to a FFDE discussed
or recommended.
At this point, however, the parallels end.
Plaintiff
presented no evidence demonstrating that Williams was subject to
disciplinary action following his written reprimand in June
2011.
Small, on the other hand, received reprimands for
violations of punctuality and attendance on two occasions (see
Ex. 37 at 3) and was ultimately again charged with
insubordination and unbecoming conduct twice in May and June
2012.
Because of the significant differences in their
3
After receiving Beasley’s letter upholding the reprimand, Small also
appealed to Greaud. (See Ex. 8.) This appeal was still pending at the time
of Small’s termination. (Id.)
40
disciplinary records, Small could not be considered to be
similarly situated to Williams.
Accordingly, MSCAA, through its
agents and employees, did not treat Williams more favorably than
Small under circumstances that were sufficiently similar.
2.
Non-Discriminatory Reason and Pretext
Because Small has established a prima facie case that MSCAA
terminated her based on her gender as to her termination, the
burden shifts to MSCAA to articulate a legitimate, nondiscriminatory reason for Small’s termination.
MSCAA has
offered evidence to show that Small was, in fact, terminated
because Small repeatedly failed to comply with direct orders and
exhibited unbecoming conduct.
First, Small failed to comply
with Williams’ November 2011 order regarding the arrest of a
passenger.
Second, Small acted in a disrespectful manner during
a meeting with Beasley and Dean on April 4, 2012.
Third, Small
laughed in response to an order by Lt. Williams on May 3, 2012.
Fourth, Small aggressively questioned an order by Williams on
May 3, 2012.
Fifth, Small failed to complete the FFDE over the
course of forty-one (41) days.
Between the notice of her FFDE
referral on May 18, 2012, and the decision to sustain the
associated charges on June 28, 2012, Small was repeatedly warned
that she would not be permitted to return to work without
passing the FFDE and that she would be subject to further
disciplinary action if she delayed the FFDE.
41
Thus, the burden shifts back to Small to prove that these
proffered reasons were mere pretext for sex discrimination.
Small has not met this burden.
The evidence presented at trial
reflects that MSCAA terminated Small because it believed Small
engaged in a pattern of insubordination and unbecoming conduct,
not based on Small’s gender.
C.
Procedural Due Process
“The Fourteenth Amendment’s Due Process Clause protects persons
against deprivations of life, liberty, or property; and those
who seek to invoke its procedural protection must establish that
one of these interests is at stake.”
U.S. 209, 221 (2005).
Wilkinson v. Austin, 545
“[P]ublic employees who can be discharged
only for cause have a constitutionally protected property
interest in their tenure and cannot be fired without due
process.”
Gilbert v. Homar, 520 U.S. 924, 928-29 (1997).
To
determine what process is due, courts utilize the Mathews v.
Eldridge balancing test and look at three factors: “[f]irst, the
private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value . . . of
additional or substitute procedural safeguards; and finally, the
Government’s interest.”
424 U.S. 319, 335 (1976).
To comport with the Mathews balancing test, a “tenured
public employee is entitled to oral or written notice of the
42
charges against him, an explanation of the employer’s evidence,
and an opportunity to present his side of the story” prior to
termination.
Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 546 (1985).
Such a pretermination hearing need not be in
front of an unbiased decisionmaker to comport with
constitutional requirements.
Duchesne v. Williams, 849 F.2d
1004, 1006 (6th Cir. 1988).
The pretermination hearing must,
however, give a “meaningful opportunity to invoke the discretion
of the decisionmaker.”
Loudermill, 470 U.S. 532, 543.
Therefore, the hearing must not be such a “sham” that the
outcome of the hearing was predetermined.
Ross v. City of
Memphis, 394 F. Supp. 2d 1024, 1038 (W.D. Tenn. 2005).
1. Conversion of Small’s Leave to Unpaid
For a tenured public employee, a suspension without pay
implicates the same procedural protections as termination.
See
Loudermill, 470 U.S. at 544-45 (noting that in “situations where
the employer perceives a significant hazard in keeping the
employee on the job, it can avoid the problem by suspending with
pay” (emphasis added) (footnote omitted)).
There is no absolute
rule, however, that a public employee is entitled to a hearing
before termination of his or her salary; a post-deprivation
hearing may be sufficient taking into account “the length” and
“finality of the deprivation.”
Gilbert, 520 U.S. at 930-32
43
(quoting Logan v. Zimmerman Brush Co., 455 U.S. 422, 434
(1982)).
MSCAA did not violate Small’s right to procedural due
process by converting her leave status from paid to unpaid.
Small received notice of the charges against her in a letter
dated May 10, 2012.
(Ex. 11.)
After a hearing on these
charges, Small received a nine-day suspension without pay to be
served May 20, 2012, through May 30, 2012.
(Ex. 12.)
Small
additionally was required to complete a psychological evaluation
to determine whether she was fit for duty.
(Id.)
After
completing her nine-day suspension, Small was placed on
administrative leave with pay pending the completion of the
FFDE.
(See Ex. 15 at 1.)
On at least six occasions, Small was
warned that her failure to comply with the fitness-for-duty
examination process would result her being placed on
administrative leave without pay status and could result in
further discipline.
(See Letters from Brian Kuhn, General
Counsel, MSCAA, to David Sullivan, Counsel for Plaintiff, Ex. 15
at 1-2 (May 31, 2012), 5-6 (June 1, 2012), 8-9 (June 4, 2012),
11-12 (June 5, 2012), 18-19 (June 12, 2012), 21 (June 12,
2012).) Consequently, Small had adequate notice that she could
be placed on unpaid leave if she failed to complete the FFDE.
Moreover, while Small did not receive a hearing prior to
the change in her leave status on June 21, 2012, she received a
44
prompt post-deprivation hearing.
Small was subject to only
seven days of unpaid leave before she had the opportunity to
appear before the internal hearing panel on June 28, 2012.
Additionally, this change in leave status from paid to unpaid
was merely a temporary measure to penalize Small for her failure
to complete the FFDE in a timely fashion, unlike her ultimate
termination, which was a more permanent action.
Had the panel
determined that the charges against Small were unfounded, Small
would have been subject to a relatively insubstantial loss of
income.
See Gilbert, 520 U.S. at 932.
The Court further notes that the government has a
significant interest in preserving public confidence in the
airport police force and ensuring the safety of the traveling
public.
This interest is sufficiently important to justify a
brief period of unpaid leave prior to affording Small a hearing.
See id. at 932-33 (“[The State’s] interest in preserving public
confidence in its police force is at least as significant as the
State’s interest in preserving the integrity of the sport of
horse racing . . . .”).
Accordingly, the Court concludes that
MSCAA did not violate Small’s due process rights when it
converted her leave status from paid to unpaid after repeatedly
informing her of this possibility and holding a prompt postdeprivation hearing.
45
2. Termination of Employment
MSCAA did not violate Small’s right to procedural due
process by terminating her employment.
Small received notice of
the charges against her in a letter dated June 21, 2012.
20.)
(Ex.
On June 28, 2012, MSCAA held a hearing and provided Small
the opportunity to refute these charges.
(See Ex. 64.)
The
evidence presented at trial demonstrates that this hearing was
not a sham and that the outcome was not predetermined.
Small
had no constitutional right to a hearing before an unbiased
decisionmaker, only a right to a hearing that provided a
“meaningful opportunity to invoke the discretion of the
decisionmaker.”
See Loudermill, 470 U.S. at 543.
The panel
that decided to sustain the charges against Small on June 28,
2012, was composed of Beasley, Stewart, Nelson, and Brandon.
Small presented her side of the story and had the opportunity to
ask questions.
(See Ex. 64.)
The panel considered Small’s
statement, as well as correspondence from Dr. Alex to Mabon and
correspondence between Kuhn and Sullivan regarding the FFDE.
Beasley, Stewart, and Brandon testified that they had not made
up their minds about the charges before the hearing, that they
deliberated after the hearing, and that the panel voted in order
of most junior to most senior to avoid undue influence.
Under
Loudermill, the “pretermination process need only include oral
or written notice of the charges, an explanation of the
46
employer’s evidence, and an opportunity for the employee to tell
his [or her] side of the story.”
Gilbert, 520 U.S. at 929
(citing Loudermill, 470 U.S. at 546).
The evidence presented
demonstrates that MSCAA satisfied the Loudermill requirements,
and accordingly, Small has failed to demonstrate that the MSCAA
violated her due process rights in terminating her employment.
D.
Referral to a Medical Examination
The ADA prohibits a covered entity from requiring an
employee to submit to a medical examination “unless such
examination or inquiry is shown to be job-related and consistent
with business necessity.”
42 U.S.C. § 12112(d)(4)(A).
“‘[P]sychological tests that are designed to identify a mental
disorder or impairment’ are ‘medical examinations’” within the
meaning of the ADA.
Kroll v. White Lake Ambulance Auth. (“Kroll
I”), 691 F.3d 809, 816 (6th Cir. 2012).
A FFDE is by definition
designed to identify a mental disorder or impairment.
Accordingly, the Court finds that the FFDE is a “medical
examination” within the meaning of the ADA.
Whether an examination is “job-related and consistent with
business necessity” is an affirmative defense.
See Chevron
U.S.A. Inc. v. Echazabal, 536 U.S. 73, 78 (2002).
The employer bears the burden of proving that a
medical examination is job-related and consistent with
business necessity by demonstrating that: (1) the
employee requests an accommodation; (2) the employee’s
ability to perform the essential functions of the job
47
is impaired; or (3) the employee poses a direct threat
to himself or others.
Kroll v. White Lake Ambulance Auth. (“Kroll II”), 763 F.3d 619,
623 (6th Cir. 2014) (internal quotation marks omitted).
With
respect to whether an employee poses a direct threat, the Sixth
Circuit has found that a lower threshold is sufficient for an
examination in workplaces in which employees “respond to
stressful situations and shoulder responsibility for public
safety”: “an employer may be justified in requesting a
psychological exam on slighter evidence than in other types of
workplaces because employees are in positions where they can do
tremendous harm if they act irrationally, and thus they pose a
greater threat to themselves and others.”
Id. at 626 (internal
quotation marks omitted).
Under the standard applicable to public safety employees,
MSCAA has demonstrated that the FFDE referral was “job-related
and consistent with business necessity” because Small’s erratic
emotional state made her unable to carry out her duties and she
posed a direct threat to herself and others.
As an armed police
officer in a paramilitary organization, Small’s emotional
stability was essential to her ability to perform her essential
job functions, such as wielding a firearm and managing
potentially dangerous and stressful situations, and to ensure
the safety of Small, other officers, and the traveling public.
48
On May 3, 2012, Beasley received reports from three supervisory
officers that they were concerned about Small’s emotional state.
As a result, Beasley believed there was reason for concern and
temporarily placed Small on leave pending her fit-for-duty
status.
(See Ex. 55.)
After the charges against Small were
sustained, MSCAA officially referred Small to a FFDE.
(Ex. 12.)
Based on Small’s previous referral to EAP and her erratic
emotional state on May 3, 2012, MSCAA determined that a FFDE was
a necessary to ensure that Small was, in fact, emotionally and
mentally fit for duty and not a direct threat to herself or
others.
Accordingly, the Court concludes that MSCAA has
demonstrated that the referral to FFDE was “job-related and
consistent with business necessity.”
Thus, Small cannot succeed
on her claim that this referral was illegal under the ADA.
E.
Retaliatory Discharge
The ADA provides that “[n]o person shall discriminate
against any individual because such individual has opposed any
act or practice made unlawful by” the ADA.
§ 12203(a).
42 U.S.C.
Where a plaintiff does not present direct evidence
of retaliation, a court “analyzes his [or her] claim for ADA
retaliation using the McDonnell-Douglas burden-shifting
approach.”
Cir. 2014).
Rorrer v. City of Stow, 743 F.3d 1025, 1046 (6th
Under this test, the plaintiff must first establish
49
a prima facie case of retaliation by “showing that (1) the
plaintiff engaged in activity protected under the ADA; (2) the
employer knew of that activity; (3) the employer took an adverse
action against plaintiff; and (4) there was a causal connection
between the protected activity and the adverse action.”
Id.
“Protected activity typically refers to action taken to protect
or oppose a statutorily prohibited discrimination.”
Id.
(quoting Goonan v. Fed. Reserve Bank of N.Y., 916 F. Supp. 2d
470, 484-85 (S.D.N.Y. 2013)).
Plaintiff claims that Defendant MSCAA retaliated against
her “on account of her opposition to the unlawful FFDE and the
exercise of her ADA rights during the FFDE.”
¶ 126.)
(2d Am. Compl.
The Court finds, however, that the referral to the FFDE
was not unlawful.
See supra Part II.D.
Thus, Plaintiff did not
engage in the statutorily-protected activity of opposing
prohibited discrimination; rather, Plaintiff opposed a lawful
referral.
Accordingly, Plaintiff cannot establish a prima facie
case of ADA retaliation on this ground.
Additionally, the ADA does not affirmatively protect an
individual’s right to record a medical examination.
Although an
individual may lawfully record his or her own communications
pursuant to 18 U.S.C. § 2511(2)(d) and Tenn. Code Ann. § 39-13601(b)(5), said right is not one “granted or protected by” the
ADA.
See 42 U.S.C. § 12203(b).
Accordingly, Plaintiff cannot
50
establish a prima facie case of ADA retaliation because the ADA
does not cover the activity for which she allegedly suffered
retaliation.
See Rorrer, 743 F.3d at 1047.
The evidence presented at trial, nevertheless, demonstrates
that MSCAA terminated Plaintiff for a pattern of
insubordination, not for opposing the FFDE.
The MSCAA
decisionmakers found Plaintiff’s insistence on recording the
FFDE to be representative of a larger problem with Plaintiff’s
continued resistance to the FFDE and continued insubordination.
Before Plaintiff attempted to record the FFDE, Plaintiff (1)
presented a letter to the first psychologist, Edward Wise, that
questioned his ethics; (2) refused to sign forms furnished by
Wise; (3) was reassigned to a second psychologist, Dr. Alex; (4)
was provided Dr. Alex’s standard medical consent forms ahead of
time, but still asked if she could alter the forms during her
June 13, 2012, meeting with Dr. Alex (see Ex. 18); and (5)
presented a similar letter to Dr. Alex regarding ethical
standards for psychologists (see Ex. 17).
Additionally, after
Dr. Alex ended the FFDE session on June 20, 2012, Small never
asked MSCAA to reschedule the FFDE or to permit her to record
the interview.
Thus, based on Kuhn’s correspondence with
Sullivan (see Ex. 15) and the information Dr. Alex provided to
MSCAA (see Ex. 58), MSCAA understood Small’s insistence on
recording to be yet another episode of resistance to the FFDE.
51
In the paramilitary setting of the MSCAA Police Department, this
resistance was labeled insubordination and unbecoming conduct
and disciplined accordingly. 4
For these reasons, the Court holds that Plaintiff fails to
establish a claim of retaliation under the ADA.
F.
Defendant Beasley’s Qualified Immunity
The Court finds that Plaintiff has failed to demonstrate
that Defendant Beasley violated any of her constitutional rights
and, accordingly, concludes that Defendant Beasley is entitled
to qualified immunity.
“Qualified immunity is an affirmative defense that shields
government officials ‘from liability for civil damages insofar
as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have
known.’”
Estate of Carter v. City of Detroit, 408 F.3d 305, 310
(6th Cir. 2005) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)).
The Sixth Circuit applies a two-step analysis to
determine whether a defendant is entitled to qualified immunity:
“(1) whether, considering the allegations in a light most
favorable to the party injured, a constitutional right has been
4
The question before the Court is not whether Small was, in fact,
insubordinate in delaying the FFDE until she heard back from Dr. Alex. The
question is whether MSCAA discriminated against Small by referring her to the
FFDE or by firing her based on her failure to complete it. Based on the
information available to and considered by the MSCAA decisionmakers, the
Court finds that neither the referral to the FFDE nor the termination was
unlawful.
52
violated, and (2) whether that right was clearly established.”
Id. at 310–11 (citing Saucier v. Katz, 533 U.S. 194, 201
(2001)).
“Courts have discretion to decide the order in which
to engage these two prongs.”
Tolan v. Cotton, 134 S. Ct. 1861,
1866 (2014) (per curiam).
Considering the evidence presented at trial, Beasley’s
actions did not violate a clearly established constitutional
right.
The claims against Defendant Beasley are: (1) hostile
work environment, (2) employment discrimination, and (3)
violations of procedural due process.
First, as discussed above, although Small was subject to
hugs by Defendant Beasley, Beasley stopped hugging Small after
she asked him to stop.
This conduct does not rise to the
objective level of severe or pervasive harassment.
Part II.A.
See supra
Accordingly, Beasley’s actions did not violate
Small’s constitutional rights.
Second, the Court finds that Beasley did not treat Small
differently than similarly situated employees or unilaterally
take any adverse employment action against Small.
Neither
Officer Stubbs, Officer Brauer, nor Lt. Williams could be
considered to be similarly situated to Small.
II.B.1.
See supra Part
Accordingly, Small failed to prove that Beasley treated
her differently than similarly situated employees.
Additionally, Small failed to demonstrate that Beasley
53
unilaterally took any adverse employment action against her.
The decisions to (1) suspend Small for nine days and refer her
to an FFDE, (2) change Small’s leave status from paid to unpaid,
and (3) terminate Small’s employment were collaborative
decisions between Beasley, Gread, and Human Resources.
Beasley
was not the sole or final decisionmaker with respect to any of
these actions.
Moreover, as discussed above, none of these
actions violated Small’s constitutional rights.
Third, the May 16, 2012, panel decision to sustain the
charges against Small and the resulting decision to suspend
Small and refer her to a FFDE, as well as the June 28, 2012,
panel decision to sustain the charges against Small and the
resulting decision to terminate Small were (1) not
unconstitutional, and (2) not unilateral decisions on the part
of Defendant Beasley.
See supra Part II.C.
Accordingly,
Beasley cannot be considered to have violated a “clearly
established constitutional right” and is therefore entitled to
qualified immunity.
III. CONCLUSION
For the reasons set forth in this opinion, the Court finds
that (1) Plaintiff failed to prove by a preponderance of the
evidence that she was subject to a hostile work environment
based on sex by MSCAA; (2) Plaintiff failed to prove that she
was the victim of sex discrimination by MSCAA; (3) Plaintiff
54
failed to prove that MSCAA violated her procedural due process
rights; (4) MSCAA has proven that the FFDE referral was jobrelated and consistent with business necessity; (5) Plaintiff
failed to prove that MSCAA unlawfully retaliated against her
under the ADA; and (6) Beasley is entitled to qualified immunity
as to all of the claims against him.
IT IS SO ORDERED, this 2nd day of December, 2015.
/s/ Jon P. McCalla
JON P. McCALLA
UNITED STATES DISTRICT JUDGE
55
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