United States District Court, N.D. Alabama, Eastern Division
March 18, 2015
TRACY STEVENS, Plaintiff,
STATE OF ALABAMA DEPARTMENT OF CORRECTIONS, et al., Defendants.
T. MICHAEL PUTNAM,
This cause is before the court on the motion for summary judgment
filed May 22, 2014, by the defendants, the Alabama Department of Corrections,
Kim Thomas, Robert Danford, Bradrick Files, Grantt Culliver, 
and James DeLoach. (Doc. 26). The motion was supported by a brief (filed one day
out of time, after seeking and receiving an extension of time) and an
evidentiary submission. (Docs. 26,
28). After seeking and receiving an extension of time in which to respond, the
plaintiff filed an opposition to the motion, supported by evidence, on July 16,
2014. (Docs. 33, 34). The defendants filed a brief in reply on August 4, 2014.
(Doc. 37). The defendants further filed a motion to substitute the declaration
of Danford for the previously filed, unsigned declaration. (Doc. 37).
Plaintiff, Tracy Stevens, a female corrections officer, alleges that
her employer, the Alabama Department of Corrections ("ADOC"), discriminated
against her on the basis of her gender. (Count One). She further asserts that
after she complained of gender discrimination, ADOC retaliated against her.
(Count Two). She also seeks redress for sex discrimination (denial of equal
protection) pursuant to 42 U.S.C. § 1983 (Count Three), asserts that defendant
Files invaded her privacy in violation of Alabama state law (Count Four), and
alleges that defendant Thomas acted with deliberate indifference by failing to
stop gender discrimination against the plaintiff (Count Five).
I. SUMMARY JUDGMENT STANDARD
Under Federal Rule of Civil Procedure 56(a), summary judgment is
proper "if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P.
56(a). The party asking for summary judgment "always bears the initial
responsibility of informing the district court of the basis for its motion, and
identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, '
which it believes demonstrate the absence of a genuine issue of material fact."
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting former
Fed.R.Civ.P. 56(c)). The movant can meet this burden by presenting evidence
showing there is no dispute of material fact, or by showing that the nonmoving
party has failed to present evidence in support of some element of its case on
which it bears the ultimate burden of proof. Celotex, 477 U.S. at
322-23. There is no requirement, however, "that the moving party support its
motion with affidavits or other similar materials negating the opponent's
claim." Id. at 323.
Once the moving party has met her burden, Rule 56 "requires the
nonmoving party to go beyond the pleadings and by her own affidavits, or by the
depositions, answers to interrogatories, and admissions of file, ' designate
specific facts showing that there is a genuine issue for trial.'" Id. at
324 (quoting former Fed.R.Civ.P. 56(e)). The nonmoving party need not present
evidence in a form necessary for admission at trial; however, he may not merely
rest on his pleadings. Celotex, 477 U.S. at 324. "[T]he plain language
of Rule 56(c) mandates the entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at trial." Id.
After the plaintiff has properly responded to a proper motion for
summary judgment, the court must grant the motion if there is no genuine issue
of material fact and the moving party is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(a). The substantive law will identify which facts are
material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A dispute is genuine "if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party." Id. at
248. "[T]he judge's function is not himself to weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine issue for
trial." Id. at 249. His guide is the same standard necessary to direct a
verdict: "whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail
as a matter of law." Id. at 251-52; see also Bill Johnson's
Restaurants, Inc. v. N.L.R.B., 461 U.S. 731, 745 n.11 (1983). However, the
nonmoving party "must do more than show that there is some metaphysical doubt as
to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). The evidence supporting a claim must be
"substantial, " Marcus v. St. Paul Fire and Marine Ins. Co., 651 F.2d
379 (5th Cir., Unit B, 1981); a mere scintilla of evidence is not enough to
create a genuine issue of fact. Young v. City of Palm Bay, 358 F.3d
859, 860 (11th Cir. 2004); Kesinger ex rel. Estate of Kesinger v. Herrington
, 381 F.3d 1243, 1249-1250 (11th Cir. 2004). If the non-movant's evidence is so
thoroughly discredited by the rest of the record evidence that no reasonable
jury could accept it, the evidence fails to establish the existence of a genuine
issue of fact requiring a jury determination. See Scott v. Harris, 550
U.S. 372, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007) ("Respondent's version of
events is so utterly discredited by the record that no reasonable jury could
have believed him. The Court of Appeals should not have relied on such visible
fiction; it should have reviewed the facts in the light depicted by the
videotape."); Lewis v. City of West Palm Beach, Fla., 561 F.3d 1288,
1290 n. 3 (11th Cir. 2009). If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted. Anderson, 477
U.S. at 249 (citations omitted); accord Spence v. Zimmerman, 873 F.2d
256 (11th Cir. 1989). Furthermore, the court must "view the evidence presented
through the prism of the substantive evidentiary burden, " so there must be
sufficient evidence on which the jury could reasonably find for the plaintiff.
Anderson, 477 U.S. at 254; Cottle v. Storer Communication, Inc.,
849 F.2d 570, 575 (11th Cir. 1988). Nevertheless, credibility determinations,
the weighing of evidence, and the drawing of inferences from the facts are the
function of the jury, and therefore the evidence of the non-movant is to be
believed and all justifiable inferences are to be drawn in his favor.
Anderson, 477 U.S. at 255. The non-movant need not be given the benefit of
every inference but only of every reasonable inference. Brown v. City of
Clewiston, 848 F.2d 1534, 1540 n.12 (11th Cir. 1988).
Applying the above-referenced standards to the evidence in the record,
the following facts appear to be undisputed, or, if disputed, are viewed in the
light most favorable to the non-moving plaintiff.
Tracy Stevens is a female employee of the Alabama Department of
Corrections, where she worked at all times relevant to this action as a
corrections officer at the Childersburg Work Release Center ("CWRC") in
Talladega County. At relevant
times, Kim Thomas was the Commissioner of ADOC; Robert Danford was the warden of
CWRC; Bradrick Files was a lieutenant and shift supervisor at CWRC; Grantt
Culliver was the Facilities Coordinator for ADOC, and James DeLoach was
Associate Commissioner of Operations at ADOC. All of the individual defendants
are male. (Complaint, Doc. 1, ¶¶ 5-11).
Stevens was hired as a corrections officer in December 1994. She was
assigned to the CWRC. Files, a lieutenant, worked as a shift supervisor. She
began working the same shift as Files in 2001 or 2002. Files kissed her once on
the lips in 2001 or 2002, but she did not report the kiss to anyone at ADOC, and
has testified that she does not consider that kiss to be part of this lawsuit.
(Stevens depo., Doc. 34-1, pp. 5-8).
Stevens testified that Files treated her fairly and professionally. Id .
During the first three years that Stevens was supervised by Files on the third
shift, she had "no problems" with Files. (Depo. of Stevens, Doc. 26-1, p. 11).
In 2011, both Stevens and DeWarren Baldwin were corrections officers working
together on the third shift, and both were supervised by Files.
On February 3, 2011, Files had a conversation with Baldwin in the
dining hall of the CWRC. (Doc. 1, ¶12). Files told Baldwin that Stevens "hated
men because of what her husband did to her in the past, " and said her husband
had "dogged her out." (Depo. of Baldwin, Doc. 2-2, p. 43). Files told Baldwin
that "you could tell" Stevens didn't like men by "the way she... treated the
inmates." Id. at 44. Baldwin says that Files also referred to Stevens as
a "dyke." Id. at 49.
Later during the same shift, Baldwin told Stevens about the
conversation he had with Files. He told her that Files warned him to be careful
who he learned how to do his duties from. (Depo. of Stevens, Doc. 26-1, p. 92).
Baldwin also told Stevens that Files had said her husband "dogged her out, " and
that she didn't like men. Baldwin did not tell Stevens that Files had called her
The next day, on February 4, 2011, Stevens filed a complaint with
Captain Ronald Sellers. (Complaint Form, Doc. 26-3). Stevens reported that
Baldwin told her that Files said she "does not like men." She complained that
his statements violated ADOC's Administration Regulation 206, Section IIA, which
prohibits "derogatory descriptions or stereotypes based on race, sex, color,
national origin, age, sexual orientation, ancestry or where disability is
concerned." (Doc. 26-3). She further reported that she had heard Files say:
"Nobody eats cupcakes but kids and punks, " and had heard Files call an inmate a
"sissy." Id. She characterized
Files' statements as "rumor(s) and derogatory comments" that created a hostile
work environment. Id . Stevens listed as the remedies she sought to have
Files demoted and transferred to another correctional facility. Id. at
Immediately after Stevens filed the complaint, Captain Ronald Sellers
conducted an investigation that consisted of submitting written questions to
Baldwin, Files, and Stevens to which each submitted written answers. Files also
submitted a separate written statement dated February 8, 2011. (Files Statement,
Doc. 26-12). In the statement, Files admitted that he told Baldwin that Stevens
didn't like men. Id . Files explained that he made the statement "in an
attempt to show Officer Baldwin that Officer Steven's [sic] didn't have his best
interest in mind, and that she was in fact just using him." Id . He said
he felt that Baldwin was not sufficiently independent and was going to be
disciplined for actions, such as incorrect bed-roster counts, that were based on
Stevens' mistakes or lack of diligence. In deposition, Files admitted that he
may have said Stevens' husband "dogged her out, " and that he meant that "her
and her husband didn't have a good ending to their marriage and he didn't treat
her well." (Files Depo., Doc. 26-6, p. 14). He further stated that he believes
what he said was not discriminatory or harassing, but that it was inappropriate
and unprofessional, and that he has apologized to Stevens. Id. at p.
The statement Baldwin gave as part of the investigation recounted that
Files said Stevens didn't like men and that her husband had "dogged her out, "
but it did not report that Files used the word "dyke." (Baldwin Decl., Doc.
26-4, p. 3). He stated that Files made the statement when he was talking about
"how the shift should be run" and that he should "be careful about what officer
[he] learned from." (Baldwin Questionnaire, Doc. 26-11, p. 2). Baldwin stated
that he never heard Files say anything disparaging about Stevens on any other
occasion, and never saw him "mistreat Officer Stevens in any other way."
(Baldwin Decl., Doc. 26-4, p. 3). He referred to the conversation with Files
about Stevens as a "one-time event." Id.
As a result of the investigation, Sellers concluded that Files had
stated that Stevens "does not like men because when she was married her husband
dogged her out." He further noted that the statement "does not definitively
reference sexual orientation." (Decision, Doc. 26-5, p. 2). Sellers did,
however, conclude that the statements "were inappropriate and possibly contrary
to" ADOC regulations, and that "although inappropriate, " the remarks "were not
designed as an attack" against Stevens, but as an effort to inspire Baldwin to
improve his job performance. Id . Sellers further stated that "transfer
to another institution is an option" for Stevens, and that "the potential for a
hostile working environment existed prior to [Stevens] bringing the matter to
[the EEO officer's] attention." Id . He further concluded that "no
residual repercussions are reasonably foreseeable." Id.
After the investigation was concluded, Files was given a written
warning, which remains in his permanent personnel file, and Files and Stevens
were assigned to work on different shifts for some period of time. Stevens'
request that Files be "involuntarily demoted" and transferred to another
facility was denied. Stevens appealed, and the decision was affirmed by the ADOC
Equal Opportunity Officer, Kimberly Weary. (Thomas Decl., Doc. 26-10, p. 3).
On February 10, 2011, while the investigation was ongoing, plaintiff
contacted DeLoach,  and told him
that Files had referred to her by a "derogatory term" that is used in reference
to lesbians. (DeLoach Depo., Doc. 34-1, p. 62). DeLoach responded that "no one
cares about anyone's sexuality anyway." (Stevens Affi., Doc. 34-1, p. 96).
DeLoach contacted Culliver about the complaint, and Culliver "talked to the
warden who looked into this incident." (Culliver Depo., Doc. 34-1, p. 107). No
further investigation was conducted by DeLoach or Culliver. Stevens does not
know of any other witnesses who should have been interviewed about her complaint
but were not. (Stevens Depo., Doc. 34-1, p. 14). She has stated that she has no
evidence that any mistreatment she complains of was because she was female, as
opposed to because she was alleged to be homosexual. (Doc. 26-1, p. 88).
After the investigation concluded and Files was given a written
discipline, Stevens testified that she and Files continued to work on the same
shift until June 2011. Stevens requested a shift change from the warden, and it
was granted. (Doc. 34-1, pp. 13-14).
Stevens does not allege that any other harassing statements were made to her by
Files or any other defendant after the investigation concluded. On one occasion,
Files called Stevens "sir, " but he corrected himself and said he didn't want to
be called to the warden's office. (Stevens Depo., Doc. 34-1, p. 32).
Baldwin has stated that, after the February incident, the working
environment changed and that Files became "strictly business." (Baldwin Depo.,
Doc. 34-1 p. 82). After that incident, Baldwin said he "came in and did [his]
job to the best of [his] ability" in order to avoid giving Files a reason to
write him up or send him to the warden's office. (Id.)
Stevens complains that she was retaliated against after she reported
Files' statement in 2011. She asserts that the retaliation was that she was
disciplined unfairly and not given proper respect. Specifically, she says that
in May 2011, a male inmate masturbated in front of another officer, and although
Stevens did not witness the incident, she became aware of it. She told her
supervisor, Sgt. Caldwell, but she did not write the infraction in the incident
report book until the next day. She was initially given a two-day suspension
without pay for failure to make a timely report of a serious inmate violation,
but the punishment was reduced to a written reprimand by Commissioner Thomas
after a hearing. Caldwell also was disciplined after the incident. (Sellers
Decl., Doc. 26-9, p. 4). Stevens maintains that she was following Caldwell's
instructions and should not have been given the written reprimand, but she does
not deny that she failed to prepare a written report the incident during the
shift on which it occurred.
In the winter of 2012, Stevens won an award as "Top Gun of the Class."
This award was not printed in the ADOC newsletter, although the winner of the
"Top Gun of the Year" had been previously recognized in the newsletter.
In January of 2012, an inmate was charged with insubordination after
he called Stevens a "dyke bulldag [sic] bitch, " in a conversation with another
corrections officer. The inmate was found guilty, but Captain Sellers
disapproved the punishment prescribed for the inmate, after determining that the
corrections officers who heard the statement may have provoked the inmate.
(Sellers Decl., doc. 26-9, pp. 5-6).
Stevens further asserts that she was retaliated against by receiving a
counseling session from Files after a prisoner miscount, although two officers
who miscounted inmates the day before had not received a counseling session. She
admits however, that she sometimes had miscounts for which she did not receive a
counseling session (the least severe disciplinary action available). (Doc. 34-1,
p. 30.) The miscount Stevens was disciplined for was a formal count, but the one
the day before was not a formal count. A counseling session is not recorded in
the officer's permanent personnel file.
Baldwin spoke with Culliver about his impressions that he was being
"picked on" after he told Stevens about Files' statements, and Culliver told
Baldwin that he needed to "stay away" from Stevens because "she seems like she's
trouble." (Baldwin Depo., Doc. 34-1, p 79).
Stevens sought a transfer to another ADOC facility on October 2, 2012,
but her request was denied, even though a male officer had been granted a
transfer in September of 2012. ADOC's policy was to allow transfers only when
another officer was willing to "change places" with the transferring officer.
The male officer whose transfer was approved had sought the transfer months in
advance and had demonstrated "exceptional circumstances."
Danford did attempt to arrange for Stevens to be transferred to Birmingham Work
Release, but was unable to find an officer at the Birmingham Facility who would
agree to the change. Danford was able to arrange for Stevens to be transferred
to the St. Clair Correctional Facility, which is located nearer to Stevens'
home, but Stevens declined the offer. (Danford Decl., Doc. 26-8; Sellers Decl.,
Plaintiff alleges that the defendants discriminated against her and
retaliated against her after she complained about the statements Files made to
Baldwin. The defendants' motion for summary judgment seeks summary dismissal of
plaintiff's claims. Defendants contend that plaintiff's Title VII discrimination
claim is due to be dismissed because: (1) the conduct complained of was not
violative of Title VII; (2) the plaintiff suffered no adverse job impact; (3)
the conduct was not severe or pervasive; (4) the defendants took reasonable
action to stop the conduct complained of; and (5) Files was not the plaintiff's
supervisor under Title VII. The defendants further seek summary judgment in
their favor on the Title VII retaliation claims based upon the failure to show
that the alleged retaliatory acts were sufficiently adverse, or that retaliation
was the but-for cause of the actions.
Plaintiff further alleges that she is entitled to relief for the same
discrimination and retaliation pursuant to Sections 1981 and 1983. Defendants
seek dismissal of those claims on the basis that her allegations do not
constitute a violation of the constitution that can be remedied through Sections
1981 or 1983. Plaintiff also sets forth a state-law claim for invasion of
privacy, which defendants assert has not been substantiated by any evidence.
A. TITLE VII DISCRIMINATION CLAIMS
Title VII prohibits discrimination with respect to an employee's
"compensation, terms, conditions, or privileges of employment because of such
individual's race, color, religion, sex, or national origin." 42 U.S.C. §
2000e-2(a). Specifically, the statute provides that it shall be unlawful for an
to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to his
compensation, terms, conditions or privileges of employment, because of such
individual's race, color, religion, sex, or national origin.
2 U.S.C. § 2000e-2(a)(1). Noticeably absent from the statute is any protection
against discrimination on account of sexual orientation. The Eleventh Circuit
Court of Appeals has held that same-sex harassment, such as a homosexual
supervisor's advances upon a same-sex employee, can be actionable under Title
VII, but specifically noted: "We do not hold that discrimination because of
sexual orientation is actionable." Fredette v. BVP Mgmt. Assocs., 112
F.3d 1503, 1510 (11th Cir. 1997). Other circuit courts of appeal have similarly
recognized that sexual orientation is not a protected class under Title VII. See
Vicker v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006);
Medina v. Income Support Div., 413 F.3d 1131, 1135 (10th Cir. 2005); Rene
v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1063 (9th Cir. 2002)( en banc );
Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257, 265 (3d Cir.
2001); Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000); Hamner
v. St. Vincent Hosp. and Health Care Ctr., Inc., 224 F.3d 701, 707 (7th
Cir. 2000); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252,
259 (1st Cir. 1999). Courts within the Eleventh Circuit have consistently
rejected Title VII claims where the complaints were based upon discrimination
that arose from the plaintiff's sexual orientation or perceived sexual
orientation. See, e.g., Bostick v. CBOCS, Inc., 2014 WL 3809169 (M.D. Fla. Aug.
1, 2014); Valencia v. Department of Interior, 2008 WL 4495694 *13 (M.D. Ala.
Oct. 7, 2008); Hudson v. Norfolk So. Ry. Co., 209 F.Supp.2d 1301, 1315
(N.D.Ga. 2001); Fitzpatrick v. Winn-Dixie Montgomery, Inc., 153
F.Supp.2d 1303, 1306 (M.D. Ala. 2001). In sum, there is no support for
plaintiff's claim that Title VII gives rise to protection for discrimination
based upon a supervisor's perception that she is a lesbian. The only actions she
complains are discriminatory (as opposed to retaliatory) are that Files told
Baldwin that she "hated men, " was "dogged out" by her former husband, and was a
"dyke." On face value, and when viewed in the context in which the comments were
made, they disparage plaintiff's perceived sexual orientation, and not her
gender. When asked at deposition whether she had any evidence that she was
mistreated because she was female, as opposed to an alleged homosexual, she
answered that she did not. (Stevens Depo., Doc. 26-1, p. 88). Accordingly, the
defendant is entitled to summary adjudication of plaintiff's Title VII claim of
gender discrimination, and Count One is due to be dismissed.
The Title VII discrimination claim also is due to be dismissed
because, even if the conduct complained of could be construed as gender or sex
discrimination, it was neither so severe nor so pervasive as to meet the
governing standards. To sustain a claim of a hostile environment, the workplace
must be "permeated with discriminatory intimidation, ridicule, and insult that
is sufficiently severe or pervasive to alter the conditions of the victim's
employment and create an abusive working environment." Miller v. Kenworth of
Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). The court must examine
"(1) the frequency of the conduct; (2) the severity of the conduct; (3) whether
the conduct is physically threatening or humiliating, or a mere offensive
utterance; and (4) whether the conduct unreasonably interferes with the
employee's job performance." Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th
Cir. 1999) ( en banc ).
Stevens does not allege that her conditions of employment were
altered, except to say that she and Files did not converse after that except as
necessary for work and in a professional manner. None of the conduct alleged was
physically threatening. Even if the conduct was gender-based (and this court
finds it was not), it was more analogous to the occasional racial slur or ethnic
epithet which have been the basis of many race or national origin complaints
ultimately found insufficient to withstand summary judgment. See, e.g.,
E.E.O.C. v. Beverage Canners, Inc., 897 F.2d 1067, 1068 (11th Cir. 1990)
(holding that for racial slurs to constitute a hostile environment, they must be
"commonplace, overt and denigrating" such that they create "an atmosphere
charged with racial hostility"); Van Portfliet v. H & R Block Mortgage Corp.
, 290 Fed.App'x 301, 304 (11th Cir. 2008). It has been noted that Title VII may
not be used as a tool to punish "the ordinary tribulations of the workplace, "
Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 2284
(1998), or failure to treat an employee with "sensitivity, tact and delicacy, "
Minor v. Ivy Tech State College, 174 F.3d 855, 858 (7th Cir. 1999).
Stevens' discrimination complaint rests on a "mere offensive utterance, " that
was not gender-based, and that was not repeated. Her conditions of employment
were not altered, and the work environment remained essentially the same. As the
comment by Files was a "one time thing, " it was not a frequent occurrence.
In sum, plaintiff cannot show that the alleged harassment by Files was
sufficiently severe or pervasive to support a claim under of hostile work
environment under Title VII.
Citing the unpublished case of Lewis v. U.S. Dep't of Labor,
Admin. Review Bd., 368 F.Appx. 20 (11th Cir. 2010), the Department of
Corrections also argues that it
is entitled to dismissal of plaintiff's Title VII hostile environment claim
under the Faragher defense. See Faragher v. City of Boca Raton, 524
U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), and Burlington Industries,
Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).
Under Faragher, an employer is not liable for a hostile work environment if the
employer takes reasonable steps to prevent and correct harassing behavior and
the employee unreasonably fails to take advantage of the employer's corrective
procedures. The defense is unavailable where the plaintiff has suffered a
tangible adverse employment action, such as being fired, suspended, or demoted.
In this case, however, the plaintiff did not suffer any tangible adverse
employment action. The Supreme Court has defined a tangible employment action as
one involving, in most cases, "direct economic harm." Ellerth, 524 U.S.
at 762. It further is undisputed that Stevens did not suffer any decrease in pay
or loss of any economic opportunity.
It is generally said that the Faragher/Ellerth defense requires the
defendant employer to prove both elements: (1) that the employer took
reasonable steps to prevent and correct harassing behavior, and (2) that the
employee unreasonably failed to take advantage of the employer's corrective
procedures. See, e.g., Baldwin v. Blue Cross/Blue Shield of Ala., 480
F.3d 1287, 1303 (11th Cir.2007) ("Because it is an affirmative defense, the
employer bears the burden of establishing both of these elements.");
Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1313 (11th Cir.2001);
Speigner v. Shoal Creek Drummond Mine, 402 F.Appx. 428, 431 (11th Cir.
2010). The Eleventh Circuit has declined to decide whether the employer must
prove both elements in "sudden sexual harassment" cases in which neither the
employee nor the employer can reasonably anticipate the harassment, but to which
both react reasonably by (for the employee) promptly reporting it and (for the
employer) promptly correcting it. See Walton v. Johnson & Johnson Services,
Inc., 347 F.3d 1272, 1291 (11th Cir. 2003) (cataloguing the arguments for
and against application of the defense when both plaintiff and employer act
reasonably, but declining to "weigh in on this debate."). It can be argued,
however, that when the employee promptly reports harassment and the employer
provides prompt and effective correction of the reported harassment, the defense
should shield the employer because it has done everything it can both to prevent
and correct illegal conduct by its subordinates. Certainly, as between two
reasonable parties put into conflict by the actions of another, it is
understandable that some courts hold that the plaintiff should not be deprived
of a remedy. See Greene v. Dalton, 164 F.3d 671, 674-75 (D.C.Cir.1999).
On the other hand, if the employer takes objectively reasonable corrective
steps, what remedy remains? The harassing behavior has been promptly and
effectively stopped by the employer.
At bottom, the potential Title VII liability of the employer rests on its
failure to take reasonable steps to prevent workplace harassment. When it has
fulfilled its duty under Title VII, it should not be liable for conduct it could
not reasonably anticipate, which it tried to prevent, and which it disciplined
promptly after it occurred.
Nonetheless, the law in this circuit seems clear that the employer
must prove both prongs of the Faragher defense. In the instant case, it
is quite clear that plaintiff did not unreasonably fail to take advantage of the
Department of Corrections' procedures for reporting harassment. Plaintiff filed
a complaint about Files' comments the day after they occurred. The fact that the
defendant conducted a prompt investigation and reprimanded Files mere days
later, while proving the first prong of the defense, cannot establish the second
prong. In the absence of proof of both elements of the defense, it is unavailing
to the defendant.
Although the Department of Corrections cannot prevail on the Faragher
defense, for other additional reasons explained above, the defendants' motion
for summary judgment on the Title VII discrimination claim is due to be granted.
All Title VII hostile work environment claims are due to be dismissed with
B. RETALIATION CLAIMS
Defendant Department of Corrections also seeks summary adjudication of
plaintiff's claim of retaliation in violation of Title VII.
Defendant asserts that plaintiff is unable to offer evidence to meet the
elements required to prove a prima facie case of Title VII retaliation.
Title VII's anti-retaliation provision states:
It shall be an unlawful employment practice for an employer to
discriminate against any of his employees... because he has opposed any
practice made an unlawful employment practice by this subchapter....
42 U.S.C. § 2000e-3(a).
In order to survive a properly supported motion for summary judgment,
the plaintiff in a Title VII retaliation case must establish a prima facie
case by showing: (1) that she engaged in protected conduct and (2) suffered an
adverse employment action that was (3) causally connected to the protected
expression. Bolivar v. University of Georgia Survey and Research, slip op. No.
3:11-CV-24, 2012 WL 4928893 *8 (M.D. Ga. Oct. 16, 2012); Taylor v. Runyon
, 175 F.3d 861, 868 (11th Cir. 1999).
The plaintiff has the obligation to show a causal connection by
showing "that the decision makers were aware of the protected activity and the
protected activity and the adverse action were not wholly unrelated." Bass
v. Board of County Comm'rs., Orange County, 256 F.3d 1095, 1119 (11th Cir.
2001) (overturned on other grounds). The causal link requirement is to be
construed broadly, and the Eleventh Circuit Court of Appeals has stated that "a
plaintiff need only show that the protected activity and the adverse action were
not wholly unrelated." Brungart v. Bellsouth Telecommunications, Inc.,
231 F.3d 791, 799 (11th Cir. 2000) (quoting Clover v. Total Sys. Servs.,
Inc., 176 F.3d 1346, 1354 (11th Cir. 1999)). However, to meet even this low
threshold of proof of causation, the plaintiff must offer some evidence from
which a jury could infer that the protected activity caused the adverse
Not all actions that an employee does not like or did not want
constitute "adverse employment actions, " however. The Supreme Court has noted
that retaliation may be premised on an act that is less harsh than one that
sustains a discrimination claim. In Burlington Northern and Santa Fe
Railway. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 2412-13, 165 L.Ed.2d
345 (2006), the Court noted that an actionable retaliatory act is not limited to
one that "affects the terms and conditions of employment." To constitute
retaliation under Title VII, however, the actions must be "materially adverse."
126 S.Ct. at 2414. A "materially adverse" action is one that a reasonable
employee would have found substantial enough that it "might well" dissuade him
or her from making or supporting a charge of discrimination. Id . See
also Crawford v. Carroll, 529 F.3d 961, 974 (11th Cir. 2008).
The plaintiff asserts that ADOC retaliated against her by disciplining
her for a minor infraction that had not previously been enforced, for failing to
properly punish an inmate who used derogatory terms to describe the Plaintiff in
violation of the State of Alabama's code of conduct for inmates, and by refusing
to allow her to transfer to another institution. (Complaint, Doc. 1, ¶ 44). The
facts, however, demonstrate that the discipline she complained of - improper
counting - was punished with only a verbal counseling, the least severe
discipline available. She does not dispute that she was guilty of improper
counting. The discipline she received for failing to report the inmate's conduct
- a suspension - was reduced by one of the defendants to a written reprimand.
Again, she does not dispute that she did not report the conduct during the shift
in which it occurred, which was against ADOC policy. And while Stevens was not
allowed to transfer immediately, ADOC's ultimate offer to allow her to transfer
was refused. While the court must view the "totality of the alleged reprisals, "
the court need only consider "those that are truly adverse." Cotton v.
Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1234 (11th Cir.
2006), quoting Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456
(11th Cir. 1998). To the extent that she asserts that Files' demeanor changed
after the complaint was filed, all of the evidence indicates that Files simply
became "all business, " and "strictly professional, " conduct that any employer
would desire and that Title VII is constructed to promote.
While she argues that other officers performed improper counts and
were not disciplined, she admits that she had miscounted before and since,
without being disciplined, and that there is a difference in a formal count and
an informal count. None of the disciplinary actions about which she complains
has resulted in any change in her employment, position, or pay. None of the
discipline, except the verbal counseling, was imposed by Files, or was shown to
be related in any way to her complaint. Moreover, none of the actions she
asserts were retaliatory would dissuade a reasonable person from pursuing a
claim. Accordingly, these allegations do not rise to the level of an "adverse
There is no dispute that Stevens engaged in protected activities by
complaining of Files' statement, by seeking redress with the EEOC, and by filing
this lawsuit. What she has failed to show is any employment action that was
sufficiently adverse to set forth a viable claim. Additionally, she has failed
to offer any evidence that the "retaliatory act" was related to her complaint.
She bears the burden of proving a causal link between her protected activities
and the alleged retaliation, and while this is not a heavy burden, it must be
based on more than mere speculation. Except for two disciplinary infractions in
April and July 2011, for which there is no evidence that either involved Files,
the other alleged instances of retaliation occurred many months later, in
January 2012 (reduced discipline for Inmate Vernon Whitlock) and June 2012
(alleged denial of transfer). On April 1, 2011, Sgt. Jones gave plaintiff a
"counseling session" related to an inmate miscount. Although plaintiff's
affidavit states that Sgt. Jones was instructed to do so by Files, there simply
is no evidence of it. The counseling form (Plaintiff's Ex. U) is signed by Sgt.
Jones and recites that she is the officer who received the miscount by
plaintiff. In July 2011, Warden Danford recommended a two-day suspension of the
plaintiff for failing to write a report of inmate misconduct before leaving at
the end of her shift. That recommendation was reduced to a reprimand by
Commissioner Thomas. Plaintiff does not dispute that she failed to write the
report, and there is no evidence from which a reasonable jury could infer that
the recommendation or the reprimand were in reprisal for plaintiff's February
complaint against Files.
In sum, plaintiff has provided insufficient evidence from which a jury
could infer that the defendant's articulated reasons for the imposition of
discipline or denial of a transfer request is not worthy of credence and that
the real reasons were retaliation. For this reason, defendant's motion for
summary judgment on the retaliation claim is due to be granted.
C. CLAIMS ARISING UNDER § 1983
The plaintiff asserts that the discriminatory and retaliatory acts she
alleges in her Title VII claims also constitute acts by the defendants, acting
under color of state law, to deprive her of her constitutional rights.
(Complaint, doc. 1, ¶¶ 47-55). She asserts in her brief that Files engaged in
bad faith, willful and malicious acts, and that defendants Danford, Culliver,
and DeLoach acted in bad faith by "refusing to investigate and assist Plaintiff"
to obtain relief from sexual harassment retaliation, and that Thomas, through
"deliberate indifference, " failed to stop the gender discrimination" that she
alleges occurred. (Doc.1, ¶¶ 61-71).
Defendants seek dismissal of the claim, and argue that §1983 is
inapplicable, as an equal protection claim, because the plaintiff has failed to
show even the elements of a discrimination claim.
Plaintiff addresses this claim in her opposition to the motion for summary
judgment by attempting to raise issues regarding allegations of improper conduct
by prison authorities toward female inmates at Julia Tutwiler Prison for Women.
(Doc. 33, pp. 63-70). The court refuses to take the giant leap urged by
plaintiff - that allegations that prison officials behaved horrendously against
female inmates in one institution indicates that other prison officials at
another institution deprived this female employee of some constitutional right
that has never been articulated.
To the extent that the plaintiff seeks redress under § 1983 for gender
discrimination, the claims are analyzed under the same McDonnell-Douglas
framework employed supra, and thus, for the reasons already discussed
above, she is not entitled to any relief. To the extent that the plaintiff is
asserting a relatively novel claim that she was discriminated against on the
basis of a mistaken perception of her sexual orientation (she was
believed to be homosexual when, in fact, she is not), she has failed to
demonstrate that the single instance of name-calling violated the Equal
Protection Clause of the Fourteenth Amendment.
Accordingly, the defendant's motion for summary judgment on Counts Three and
Five also is due to be granted.
D. State-Law Claim
Plaintiff also asserts that Files invaded her privacy in violation of
Alabama law. Because all federal claims in this case are due to be dismissed,
the court finds that the remaining state-law claim is due to be dismissed
without prejudice pursuant to 28 U.S.C. § 1367(c)(3). The court of appeals has
expressed the view that, when all federal claims are dismissed prior to trial,
the district ordinarily should decline supplemental jurisdiction over state-law
claims. See Raney v. Allstate Ins. Co., 370 F.3d 1086, 1089 (11th
Cir.2004) ("We have encouraged district courts to dismiss any remaining state
claims when, as here, the federal claims have been dismissed prior to trial.");
Clark Memorials of Alabama Inc. v. SCI Alabama Funeral Servs. LLC, 991
F.Supp.2d 1151, 1169 (N.D. Ala. 2014). Accordingly, the court declines to
exercise jurisdiction over any state-law claim, and the plaintiff may reassert
that claim in state court.
For all of the foregoing reasons, the defendants' motion for summary
judgment is due to be granted and all of plaintiff's federal claims are due to
be dismissed with prejudice. The remaining state claim for invasion of privacy
will be dismissed without prejudice. A separate order will be entered in
accordance with the findings set forth herein.