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Akwiwu v. State, Ala. Dep't of Youth Servs.

United States District Court, M.D. Alabama, Northern Division

October 15, 2014

ELLIS AKWIWU, Plaintiff,

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[Copyrighted Material Omitted]

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For Ellis Akwiwu, Plaintiff: Amardo Wesley Pitters, LEAD ATTORNEY, A. Wesley Pitters, P. C., Montgomery, AL.

For State of Alabama Department of Youth Services, Defendant: Lynne Riddle Thrower, Thornton Dudley Perry, Jr., LEAD ATTORNEYS, Alabama Department of Youth Services, Mt. Meigs, AL.

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Plaintiff Ellis Akwiwu sues his former employer, Defendant Alabama Department of Youth Services (" DYS" ), for national origin discrimination, hostile work environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964 as amended. 42 U.S.C. § 2000e et seq. Before the court is DYS's motion for summary judgment (Docs. # 19, 20, 21), which has been fully briefed (Docs. # 23, 28). Upon consideration of the parties' arguments, the evidence, and the relevant law, the court finds that the motion is due to be granted.


The court exercises subject-matter jurisdiction pursuant to 28 U.S.C. § § 1331 and 1343 and 42 U.S.C. § 2000e-5(f)(3). Personal jurisdiction and venue are uncontested.


To succeed on summary judgment, the movant must demonstrate " that there is no genuine dispute as to any material fact and [he] is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The court must view the evidence and the inferences from that evidence in the light most favorable to the nonmovant. Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).

The party moving for summary judgment " always bears the initial responsibility of informing the district court of the basis for its motion." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This responsibility includes identifying the portions of the record illustrating the absence of a genuine dispute of material fact. Id.; Fed.R.Civ.P. 56(c)(1)(A). Or, the movant can assert, without citing the record, that the nonmoving party " cannot produce admissible evidence to support" a material fact. Fed.R.Civ.P. 56(c)(1)(B). If the movant meets its burden, the burden shifts to the nonmoving party to establish -- with evidence beyond the pleadings -- that a genuine dispute material to each of its claims for relief exists. Celotex, 477 U.S. at 324. A genuine dispute of material fact exists when the nonmoving party produces evidence allowing a reasonable fact finder to return a verdict in its favor. Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001).


A. Facts

1. Employment History and Alleged Discriminatory Treatment

DYS is a state agency which operates juvenile correctional facilities and provides educational services to the youths in its custody. Mr. Akwiwu was hired as a DYS Child Care Worker in 1990. A native of Nigeria with a " pronounced and strong" accent (Second Am. Compl., at ¶ 9), Mr. Akwiwu alleges that he was discriminated against repeatedly during his employment by " fellow staff and supervisors," some of the latter of whom are named in his second amended complaint, (Second Am. Compl., at ¶ 9 (identifying James Tyler, Robert Lee, Victor Black and Ms. Byrdsong). No fellow staff members ( i.e., non-supervisors) are identified by name as his antagonists

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in the pleading. Nor did Mr. Akwiwu name them during his deposition when asked for names. ( See Akwiwu Dep. at 85-88.) He simply testified that " every[ ]day" people " call [him] names" -- although he did not describe or identify those names -- and told him, " We cannot understand your Nigerian accent." (Akwiwu Dep. at 85-86.) Mr. Akwiwu further claims that he was subjected to disparate treatment in disciplinary matters during his tenure on the basis of his race and national origin[1] and that DYS authorities subjected him to unwarranted " write-ups, warnings, reprimands, and a demotion." (Second Am. Compl., at ¶ 9). Mr. Akwiwu has an extensive disciplinary record, but he does not believe that he was disciplined justly.

Mr. Akwiwu filed a previous Title VII lawsuit in 2001 in the Middle District of Alabama against DYS. DYS prevailed at summary judgment on February 18, 2003. ( See Doc. # 20-38.) Two of the persons identified in the second amended complaint (Mr. Tyler and Mr. Lee) were Mr. Akwiwu's supervisors around or during the time that the prior civil suit was pending. Two other supervisors (Mr. Black and Ms. Byrdsong) supervised Mr. Akwiwu in 2010 and 2011, respectively. Mr. Black allegedly sent troubled students to a dorm that Mr. Akwiwu formerly managed and undermined Mr. Akwiwu's authority there. ( See Second Am. Compl., at ¶ 9). Ms. Byrdsong allegedly wrote up Mr. Akwiwu for an incident that Mr. Akwiwu claims could not have occurred as reported because Mr. Akwiwu was off work that day. He further claims that DYS demoted him but allowed an unnamed comparator to be reassigned to a different facility in lieu of demotion. ( See Second Am. Compl., at ¶ 9). The person responsible for deciding to recommend a demotion is not identified by name.

DYS represents that on March 31, 2012, Mr. Akwiwu indeed was demoted from Counselor I to Child Care Worker because he failed to properly perform the duties of his job. Mr. Akwiwu contested his demotion before the State Personnel Board (" the Board" ). The Board affirmed the demotion on July 9, 2012. ( See Doc. # 20-2.) DYS contends that the Board has authority to consider any charges of unlawful discrimination in violation of Title VII and that Mr. Akwiwu failed to file a charge of discrimination with the EEOC " within thirty days after receiving notice that the [Board] ha[d] terminated [its] proceedings," 42 U.S.C. § 2000e-5(e)(1).

Mr. Akwiwu submitted a charge of discrimination to the EEOC, which the EEOC received on December 31, 2012. ( See Doc. # 20-4.) In the charge, Mr. Akwiwu complained that he had been constantly harassed by supervisors, denied requests to use his leave or lost time earned, given low performance evaluations, falsely accused of infractions of DYS rules, and demoted. (Doc. # 20-4.) Mr. Akwiwu checked the box for " national origin" as the basis of the discriminatory treatment, and identified June 18, 2012, and November 30, 2012, as the earliest and the latest dates of discriminatory treatment. He also indicated that the discriminatory treatment was ongoing because he checked the " continuing action" box. ( See Doc. # 20-4.) Assuming that Mr. Akwiwu was not obligated to lodge a charge of discrimination with the EEOC within thirty days of the Board's final decision to uphold Mr. Akwiwu's demotion, DYS argues that the charge was still untimely because it was not " filed within one hundred and eighty days after the alleged unlawful employment

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practice[s] occurred." 42 U.S.C. § 2000e-5(e)(1).

2. Alleged Retaliation

On June 22, 2013, Mr. Akwiwu was caught on camera sleeping on-the-job while two youths under his supervision attempted to escape from DYS's Mt. Meigs Campus. After the incident, DYS also determined that Mr. Akwiwu falsely reported that he conducted a head count shortly after awaking. The June incident occurred within one month of DYS's issuance to Mr. Akwiwu of a prior written warning on May 28, 2013, for sleeping on the job on May 24, 2013. Mr. Akwiwu has maintained that he was not asleep. Mr. Black, as acting campus administrator at Mt. Meigs, set the June 22, 2013 incident for a fact-finding hearing in late July, 2013. ( See Doc. # 20-15 (letter dated July 11, 2013)).

On September 4, 2013, upon a recommendation that Mr. Akwiwu be suspended or fired, Executive Director J. Walter Wood notified Mr. Akwiwu that a disciplinary hearing was set for September 17, 2013. (Doc. # 20-16.) DYS issued Mr. Wood's letter within days of the EEOC's issuance of a notice of right to sue letter on August 28, 2013. ( See Doc. # 23-1, at 2.) Without acknowledging that DYS had already begun investigating the June 22, 2013 incident, Mr. Akwiwu asserts that DYS set the disciplinary hearing in retaliation for the EEOC's issuance of the notice of right to sue letter a few days earlier.

DYS's administrative hearing was continued, per Mr. Akwiwu's counsel's request, to January 14, 2014. On February 4, 2014, DYS terminated Mr. Akwiwu's employment. Mr. Akwiwu filed a second charge of discrimination with the EEOC on February 20, 2014, alleging retaliatory termination for his ...

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