United States District Court, N.D. Alabama, Eastern Division
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