United States District Court, S.D. Alabama, Southern Division
DOROTHY M. GIPSON, Plaintiff,
SHERIFF SAM COCHRAN, Defendant
Decided March 3, 2015.
[Copyrighted Material Omitted]
For Dorothy Gipson, Plaintiff: Mary E. Pilcher, LEAD ATTORNEY, Stein and Pilcher, LLC, Fairhope, AL; Rocco Calamusa, Jr., LEAD ATTORNEY, Wiggins, Childs, Quinn & Pantazis, LLC, Birmingham, AL.
For Sam Cochran, Defendant: K. Paul Carbo, Jr., LEAD ATTORNEY, The Atchison Firm, Mobile, AL.
KRISTI K. DuBOSE, UNITED STATES DISTRICT JUDGE.
This action is before the Court on the motion for summary judgment and supporting documents filed by defendant Sheriff Sam Cochran (docs. 54-57), the response in opposition filed by plaintiff Dorothy M. Gipson and supporting documents (docs. 62, 63), and Sheriff Cochran's reply and supporting documents (doc. 65, 66). Upon consideration, the motion is DENIED in part and GRANTED in part as set forth herein.
I. Procedural History
On October 30, 2013, Plaintiff Dorothy M. Gipson filed her complaint against Sheriff Sam Cochran alleging violations of Title VII of the Civil Rights Act of 1991, and the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) (doc. 1). Gipson alleges that Sheriff Cochran violated USERRA by extending her probationary period due to absences for military training and refusing to provide the same training as other deputies, and by terminating her employment. (Count 1) Gipson also alleges that Sheriff Cochran discriminated against her on basis of sex by treating similarly situated male officers differently in the terms and conditions of employment, application of work rules, extension of probation and termination (Count 2). As relief, Gipson seeks declaratory and injunctive relief as to the alleged sex discrimination and violation of USERRA, reinstatement to the position of deputy, back-pay plus interest, compensatory and liquidated damages, costs, attorneys fees, and expenses.
II. Findings of Fact
Dorothy Gipson, a female, was hired as a Deputy Sheriff on March 19, 2011. Gipson was a member of the United States Air Force Reserve during her employment with defendant Sheriff Cochran. Before she was hired, Gipson had been a police officer with the City of Prichard, Alabama.
Gipson was required to go through a " Working Test Period" or probation for one year. A deputy initially goes through
Field Training and is assigned a Field Training Officer (FTO). The FTO documents the deputy's work performance and training on a daily and weekly basis. Field Training is scheduled to last 8 weeks and at such time the new deputy is deemed able to perform the job solo and is assigned to a squad. Once assigned to a squad, the new deputy is evaluated quarterly with the expectation of completing the Working Test Period within a year of being hired. If the Working Test Period is successfully completed, the deputy then becomes a permanent deputy.
Gipson's first FTO Sergeants Weekly Report is dated March 21, 2011 through March 27, 2011. (Doc. 63-12, p. 1) During her eight weeks of field training her performance was generally rated as " Acceptable" and during the last four weeks her performance was " Acceptable" but for driving skills which were marked as " Unacceptable" (Doc. 63-12, p. 7-10). Most of the " Comments" indicated that Gipson's work was " Good" but for driving skills. (Id.) At the 8th week, Sergeant Lori O'Farrell indicated that Gipson was performing at " solo deputy level" but recommended " one week of extended training with being assigned to the north side to assure she is ready to be released from FTO training." (Doc. 63-12, p. 10)
During this time, Gipson was absent from duty with the Sheriffs Department for military training. (Doc. 63-3) There are no FTO Weekly Reports for the four-week time period between April 11, 2011 and May 8, 2011, so it appears this is when Gipson was at military training. (Doc. 63-12) Her field training was extended to ensure that she received eight weeks of field training. (Doc. 63-3)
Gipson returned from her April 2011 military leadership training in May 2011. Gipson testified that during a combined roll call for both shifts: " I basically just remember [Lt. Roderick Bonner] directing his attention to me and saying that I needed to be there." Gipson refers to this incident as blurting out for no reason, " Deputy Gipson, you need to be here." (Doc. 63-27, p. 5)
At the completion of field training in May 2011, Gipson was first assigned to " the Alpha part of 100 squad." (Doc. 57-1, p. 21, Bonner deposition) The Alpha squad Sergeants were O'Farrell and Sergeant Robert Miller. (Id., p. 21-22). Lt. Bonner, Captain Carlos Thompson, Deputy Chief David Wilhelm and Sheriff Cochran were her chain of command. During Gipson's term with Alpha Squad, Lt. Bonner was not aware of any deficiencies documented by Sgt. Miller as to Gipson. (Doc. 63-25, p. 9) During this time, Gipson went on military leave.
In September 2011, Gipson was assigned to the Bravo part of 100 squad and her Sergeants were Steven Hale and Todd Friend (Id., p. 23). Lt. Bonner, Capt. Thompson, Deputy Chief Wilhelm and Sheriff Cochran remained her chain of command. During this time Gipson went on military leave.
Gipson testified that Deputies Pettway, Watson, and Cooper told her that Lt. Bonner did not like females working in law enforcement and would do whatever it took to get them terminated. (Doc. 63-27, p. 6) In her answers to interrogatories, Gipson states that while she was assigned to work with Deputy Cooper, Lt. Bonner called her to the Northside Office and told her that she was " progressing well", that he then asked her " numerous personal questions and then commented that [she] would decide if [she] would be treated as a slut within the department." (Doc. 63-28, p. 4) At her deposition, Gipson testified that at the station, in the roll call room, with Sgt. Hale present, Lt. Bonner asked Gipson where she lived and " then he said I didn't have to answer the question. He asked who did I live with and he said oh, your son. Then I think that's when he went into saying that I was black and female." (Doc. 63-27, p 7) (Gipson's testimony is unclear as to whether there were two conversations with Lt. Bonner wherein he asked personal questions.)
On November 9, 2011, Gipson injured her back while getting into her patrol car and was on injured with pay status until December 16, 2011, when she returned to full duty status. Gipson was off duty for
sixteen 12-hour days. (Doc. 63-3, Lt. Bonners request for extension)
On December 28, 2011, Lt. Bonner wrote Chief Deputy Wilhelm to request a ninety-day extension of Gipson's Working Test Period, which was scheduled to end March 2012. (Doc. 63-3) Lt. Bonner stated as follows:
After reviewing the work performance of Deputy Dorothy Gipson, as well as her availability for duty since her hiring date of March 21, 2011, I am requesting her probationary period be extended of a period of 90 days. Deputy Gipson has the potential to be an asset to the Mobile County Sheriffs Office however, due to circumstances which may be beyond her control, she has missed a great deal of duty time.
When Deputy Gipson was hired by the Mobile County Sheriffs Office, she was already a member of the United States Air Force Reserve. Her military drill dates have required that she be absent from duty with the Mobile County Sheriffs Office. Also, due to her military training dates, I was forced to extend her field training four additional weeks to ensure she was trained the eight required weeks. Deputy Gipson completed field training however, there was a delay of her release from training status. I have enclosed a copy of Deputy Gipson's military training schedule for 2011 which reflects the dates she had to report to the Air Force Reserve for military drills and training. Deputy Gipson is still in the Reserve and will continue to attend drills and be forced to miss time on duty with the Mobile County Sheriff's office. Using the 2011 schedule as a reference, Deputy Gipson will miss at least six more working days prior to completing her now scheduled Probationary period of March 2012. We are fully supportive of her mission with the Air Force Reserve however, when time is missed with the Sheriff's Office her duty performance can not be evaluated.
On November 09, 2011, Deputy Gipson reported that she injured her back while getting into her patrol car prior to going on patrol. As a result of this reported injury, Deputy Gipson was placed on Injured With Pay (IWP) status from November 09, 2011 until she was released to full duty status on December 16, 2011. During this time, Deputy Gipson was absent from duty sixteen 12 hour days. Again, this was time that her duty performance could not be evaluated by me or her first line supervisor.
When evaluating Deputy Gipson's performance, based on the time she has been employed by the Mobile County Sheriff's Office and been present for duty, it becomes apparent that Deputy Gipson has a lack in job knowledge or lacks the necessary confidence to complete some of her assigned tasks. Sergeant Steve Hale has observed that Deputy Gipson will call him on nearly all of her calls for service before she takes any action. While it is sometimes necessary to contact a supervisor, her repeated calls tend to show a lack of the basic working knowledge of the laws, rules and regulations needed by a Deputy Sheriff in performance of his/her duties. It is also an indication of a lack of confidence needed to make a decision.
A few recent examples of Deputy Gipson's lack of job knowledge, lack of confidence or reluctance to make a decision, occurred during the month of December 2011:
I.12/22/2011 - A citizen met Deputy Gipson at the substation in Semmes and requested that she inspect his car and sign off on a Uniform Traffic Citation he received for No Tag Light Deputy Gipson contacted Sergeant Hale to determine what action to take.
The action she took was to advise the citizen to return to the location where he received the citation and then call the sheriff's office. Signing off on an equipment violation citations is [a] common task within law enforcement. When Deputy Gipson was asked why she took the action she took, her reply was that she did not feel comfortable signing off on the citation.
2.12/30/2011- Deputy Gipson issued a warrant slip to Mr. Michael Pond for the arrest of Terry Burdett charging his (sic) with Theft of Services (Case# Slll20847). The facts of the case did not support the charge. Deputy Gipson indicated that Mr. Pond told her that he had contacted his lawyer concerning the matter. It appears that Deputy Gipson issued the warrant slip because of the mention of the lawyer's involvement, not based on the elements of the allegation. Deputy Gipson's action could have caused Mr. Burdett to be wrongly arrested.
Deputy Gipson's absence from duty has impeded my ability to evaluate her performance and her merit as a permanent employee. It can be assumed that most of her noted shortcomings can be directed (sic) attributed to her lack of experience. I believe that extending her probationary status an additional 90 days from March 21, 2012 to June 21, 2012 would afford me and her first line supervisor a better opportunity to judge the merit of Deputy Gipson and then make a recommendation for her future employment with the Mobile County Sheriffs Office.
On January 12, 2012, Sheriff Cochran made a formal request to the Mobile County Personnel Board stating as follows:
I am requesting an extension for Deputy Dorothy Gipson's Working Test Period. Deputy Gipson has failed to master basic job skills necessary to be a successful Deputy Sheriff. With further training, it may be possible to assist Deputy Gipson in becoming a fully successful Deputy Sheriff. Therefore, I request her Working Test Period be extended for six months commencing on March 17, 2012 and ending on September 17, 2012.
Sheriff Cochran testified that the length of the extension is " three months, six months, depending on ... whatever is recommended or just whatever my thoughts are at the time." (Doc. 63-26, p. 5). Lt. Bonner and Deputy Chief Wilhelm were unaware of other deputies that were given a six-month extension. (Doc. 63-25, p. 17-18, Bonner deposition; Doc. 63-24, p. 5, Wilhelm deposition)
After the Working Test Period was extended, Gipson was placed with Deputy Cooper, an experienced senior deputy with knowledge of policy, procedures and Alabama law to " train her and answer all the questions - - not formal training,... but just answer all the questions, show her how to do it on the job." (Doc. 63-25, p, 22-23, Bonner deposition) Lt. Bonner ...