United States District Court, N.D. Alabama, Southern Division
ABDUL K. KALLON, District Judge.
Plaintiff Edna Geraldine Freeman, a 59-year old African-American with an arthritic condition, alleges that her former supervisors at the University of Alabama Birmingham's Center for Psychiatric Medicine ("CPM") discharged her unlawfully because of her race, age, and alleged disability. Doc. 7 at 4-7. Accordingly, Freeman brings claims against the Board of Trustees for the University of Alabama for race discrimination under Title VII of the Civil Rights Act of 1964, and 42 U.S.C. § 1981 (brought by and through 42 U.S.C. § 1983), age discrimination under Alabama law, and disability discrimination under Alabama law and the Americans with Disabilities Act Amendments Act ("ADAAA"). Id. Before the court is the Board's motion for summary judgment. Doc. 48. For the reasons below, except for the race discrimination claims, the motion for summary judgment is due to be granted.
I. STANDARD OF REVIEW FOR SUMMARY JUDGMENT
Under Rule 56(a) of the Federal Rules of Civil Procedure, 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." To support a summary judgment motion, the parties must cite to "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers, or other materials." FED. R. CIV. P. 56(c). Moreover, "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." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party, who is required to "go beyond the pleadings" to establish that there is a "genuine issue for trial." Id. at 324 (citation and internal quotation marks omitted). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the non-moving party's favor). However, "mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion." Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)). Furthermore, "[a] mere scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).
As of February 2012, Freeman held a Psychiatric Assistant ("PA") position in the geriatric unit of CPM. See doc. 50-1 at 22-24. However, Freeman occasionally volunteered to work overtime shifts in other units. Id. at 25. One such overtime assignment led to Freeman's discharge. Specifically, on June 10, 2012, Freeman volunteered for an overtime shift from 6:30 a.m. until 2 p.m. at the adolescent unit. Id. at 29. During that shift, Freeman worked as a "sitter" for adolescent patient A.S. Id. According to Jeana Fox, the Nurse Manager of the adolescent unit, Freeman's obligation as a "sitter" was to ensure that A.S. did not harm herself or others. Doc. 50-10 at 10. Apparently, the "sitter" position requires constant attention because, as Director of CPM Steve Nasiatka explains, a patient can injure herself or others within seconds. See doc. 50-8 at 22. While Freeman believes that she properly executed her duties as a "sitter" that day, her supervisors disagreed after observing a surveillance video of purported inappropriate conduct between A.S. and the other patients. Fox initially retrieved the surveillance video to investigate an allegation from A.S. that another patient, J.M.C., "forced her to kiss him" in front of Freeman. Doc. 50-10 at 6, 7. When Fox asked Freeman if she saw the kiss, Freeman said no, and explained that she saw another patient, J.C., "pull J.M.C.'s pants down." Id. at 6; doc. 50-1 at 36. After viewing the video, Fox concluded that J.M.C and A.S. "appeared to kiss, " and that the video revealed other inappropriate conduct between A.S. and other adolescent patients, including the incident where J.C. pulled down J.M.C's shorts. Id. at 11, 24. Based on Fox's recommendation, Nasiatka and Freeman's direct supervisor in the geriatric unit (Kimberly Ayers) discharged Freeman on June 25, 2012 for "provid[ing] a false statement" about the alleged kissing incident and for failing to "maintain [a] safe and secure environment" for the patients. Docs. 50-10 at 17; 50-9 at 27.
According to the surveillance video before court, the conduct at issue occurred over the course of approximately five minutes from 1:04 p.m. until 1:09 p.m. and primarily involved three patients: A.S., J.M.C, and J.C. See Surveillance Video from June 10, 2012 *SEALED*. Throughout the video, which has no audio, A.S., J.M.C., and J.C. congregate in the hallway of the unit, next to the nurse's station (which has windows spanning the length of the entire station). Id. *SEALED*. As far as the court can discern from the video, the three patients appear to be smiling, laughing, skipping, and teasing each other. Id. *SEALED*. Meanwhile, the footage shows Freeman sitting in a chair in the hallway in the center of the area where the patients are congregated. Id. *SEALED*.
A. Alleged kiss between J.M.C. and A.S.
At the start of the video, J.M.C., who is standing facing A.S. within arm's length of A.S.'s body, reaches out and rests his palms on A.S.'s shoulders for less than one second, and then walks away. Id. *SEALED* at 13:04:03-05. A few seconds later, with his back to the camera, J.M.C. approaches A.S. again, grabs her by the shirt near her neck, and brings his face very close to hers for less than one second. Id. *SEALED* at 13:04:10-12. At that moment, nurse Joe Tucker appears in the video through the window of the nurse's station next to J.M.C. and A.S. Id. *SEALED* at 13:04:12. A.S. turns to look at Tucker through the window of the nurse's station, and almost simultaneously J.M.C. and A.S. quickly separate. Id. *SEALED*. Tucker, like Freeman, maintains that he never witnessed any kiss between J.M.C and A.S. Docs. 50-13 at 92; 50-17 at 5. As for Freeman, the surveillance video is inconclusive as to whether she was looking in J.M.C. and A.S.'s direction during the purported kiss. Id. *SEALED* at 13:04:10-15.
B. Other inappropriate conduct
Aside from the alleged kiss, the other alleged inappropriate conduct primarily centers around A.S. and J.C.'s attempts to pull down J.M.C.'s shorts. Less than a minute after the alleged kiss, the video shows A.S. touching and attempting to raise J.M.C.'s shorts, which are seemingly baggy. Surveillance Video *SEALED* at 13:04:54-56. In reaction, J.M.C. reaches out and, while facing A.S., holds her by her forearms and guides her backwards several feet into a corner against the window of the nurse's station. Id. *SEALED* at 13:04:58-13:05:00. J.M.C. and A.S. are not visible to the camera for a few seconds, but Freeman appears to be watching them during this time. Id. *SEALED*. As J.M.C. and A.S. walk out of the corner, A.S. approaches J.M.C. from behind and tugs downwards on his shorts. Id. *SEALED* at 13:05:11-12. J.M.C.'s shorts do not come off, and A.S., J.C., and Freeman appear to be laughing. Id. *SEALED* at 13:05:13-15.
For the next several seconds, the video shows A.S., J.M.C., and J.C. skipping and walking around Freeman in the hallway. Id. *SEALED* at 13:05:15-38. The three patients walk to the back of the hallway a few feet behind Freeman, who has her head turned halfway toward them. Id. *SEALED* at 13:05:35-40. The video next shows J.C. appearing to rub her buttocks against the front of J.M.C's body for approximately one second, and the patients appear to be laughing. Id. *SEALED* at 13:05:38-43. Presumably after hearing the laughter, Freeman turns her head fully around, and at that moment, A.S. hits J.M.C. on his buttocks and walks a short distance away laughing. Id. *SEALED* at 13:05:43-48. Still behind Freeman, J.C. briefly attempts to pull down J.M.C.'s shorts. Id. *SEALED* at 13:05:50. It is not clear from the video whether J.C. succeeded, and the three patients quickly separate and all appear to be laughing. Id. *SEALED*. Freeman appears to be speaking to the patients, perhaps telling them to stop,  id. *SEALED* at 13:05:58, and A.S and J.C. give each other "high fives, " id. *SEALED* at 13:06:04.
Less than one minute later, A.S. and J.C. execute their third attempt to pull down J.M.C.'s shorts. This time, A.S. initially reaches out to pull the shorts, but J.M.C. dodges her attempt. Id. *SEALED* at 13:06:36-37. Then, J.C. succeeds in pulling J.M.C.'s shorts down after an interaction that lasts approximately ten seconds, with J.M.C. falling to the floor while resisting and trying to pull his shorts back up. Id. *SEALED* at 13:06:38-49. After the incident, J.C. and A.S. walk away and "high five" each other. Id. *SEALED* at 13:06:50-53. Throughout this incident, Freeman is sitting near the patients. Id. *SEALED* at 13:06:38-49. For the first five seconds of the ten-second episode during which J.M.C. attempted to resist J.C., Freeman remains seated and appears unaffected. See id. *SEALED* at 13:06:39-45. Toward the end of these five seconds, J.M.C. is on the floor resisting J.C., and J.C. had basically succeeded in pulling down J.M.C's shorts. Id. *SEALED*. At this point, the footage from the camera facing Freeman skips over the next nine seconds. See id. *SEALED* at 13:06:45, 13:06:54. When the footage resumes, Freeman is still seated, and J.C. has walked away from J.M.C. and is sitting in a chair in the hallway in front of Freeman. Id. *SEALED* at 13:06:54-13:07:00. J.M.C. leaves the hallway briefly and is outside of the camera's view for approximately the next fifteen seconds. Id. *SEALED* at 13:07:00-15. J.M.C. then returns to the hallway and approaches J.C., who is still seated in the chair in front of Freeman, and J.C. reaches forward and again attempts to pull down J.M.C.'s shorts. Id. *SEALED* at 13:07:15. For the next several seconds, Freeman is looking toward J.C. and appears to speak to her. Id. *SEALED* at 13:07:18-31. J.C. at one point seems to acknowledge Freeman by turning her head and looking toward Freeman. Id. *SEALED* at 13:07:24. For the remainder of the video, neither A.S. nor J.C. attempt to pull down J.M.C.'s shorts. See id. *SEALED* at 13:07:24-13:08:50.
The last incident of inappropriate conduct occurred about one minute after J.C. pulled down J.M.C's shorts. While J.C. is sitting in the chair in front of Freeman, J.M.C. approaches and sits on the arm of the chair, and then leans onto J.C. and makes pelvic thrusting motions onto her body for approximately three seconds. Id. *SEALED* at 13:08:22-27. As J.M.C. is doing this, Tucker appears from the window of the nurse's station, and J.M.C. quickly stands up from the chair. Id. *SEALED* at 13:08:27-34. Tucker appears to gesture toward J.M.C. as J.M.C. looks toward Tucker through the window. Id. *SEALED* at 13:08:30-32. During this incident, Freeman is seated close by and, even though it appears that she sees J.M.C's behavior, does not appear to react in any way. Id. *SEALED* at 13:08:27-34. A few seconds later, J.M.C. approaches J.C. again, stands facing J.C. while J.C. is seated, and places his palms on top of her shoulders. Id. *SEALED* at 13:08:37. When J.C. tries to push him away, J.M.C. leans forward and places the weight of his entire body on J.C. for approximately four seconds. Id. *SEALED* at 13:08:38-44. During this interaction, Freeman is gesturing in J.M.C's direction and looks like she is speaking. Id. *SEALED*. While J.M.C. is laying on top of J.C., Elaine Spaulding (the charge nurse on duty that day) ...