Lamar v. State of Alabama Department of Conservation and Natural Resources

          ORDER

          JAMES D. WHITTEEMORE United States District Judge

         BEFORE THE COURT is the Report and Recommendation ("R&R") of the Magistrate Judge recommending that William Key's Motion for Partial Summary Judgment (Dkts. 79, 80) be denied, Defendants' Motions for Summary Judgment with Respect to Claims of Lavonne "Penny" Lamar (Dkt. 86) be granted in part and denied in part, and Defendants' Motion for Summary Judgment with Respect to Claims of William K. Key (Dkt. 88) be granted in part and denied in part (Dkt. 137). After consideration of the R&R, Defendants' objections, ^[1] and a de novo review, the recommendations in the R&R are adopted, as supplemented herein.^[2]

         Key does not object to the dismissal of his official capacity Title VII and race discrimination claims against Greg Lein and Lisa Laraway in Counts I, II, IV, V, VI, and VII, his retaliatory hostile work environment claim against the Alabama Department of Conservation and Natural Resources ("DCNR") in Count II, his ADA claims in Counts V and VI, or his Rehabilitation Act claim in Count VI. Nor does Key object to the denial of his Motion for Partial Summary Judgment (Dkts. 79, 80).^[3]

         Lamar likewise does not object to the dismissal of her official capacity Title VII and race discrimination claims against Lein and Laraway in Counts I, II, in, and IV, her disparate treatment claim against DCNR in Count in, or her claim for constructive demotion against DCNR in Count IV. Accordingly, the R&R is adopted as to these recommendations.

         Defendants filed an eighty-four page statement of objections to the R&R (Dkt. 138) concerning Lamar's claims for Retaliation in Violation of Title VII and Retaliatory Hostile Work Environment, and Key's claims for Retaliation in Violation of Title VII and Retaliation in Violation of the Rehabilitation Act.

         Preliminary observation

         Lamar's and Key's respective claims of discrimination, retaliation and hostile work environment are fairly typical of employment discrimination cases. Notwithstanding, this case has become a quintessential example of out of control litigation.^[4] The attorneys apparently do not appreciate that concise and thoughtful argument will more often than not result in sound and decisive rulings, free from error and oversight.^[5] The Magistrate judge, burdened by a voluminous evidentiary record, multiple claims by two plaintiffs, three summary judgment motions, three responses and three replies, did a herculean job of sifting through all of that, hi their 84 pages of "objections, " Defendants complain loudly, but unconvincingly, about his thoughtful and well reasoned recommendations.^[6] While there may be some factual misstatements in his recitation, his legal conclusions are spot on.

         I. Standard

         Summary judgment is appropriate where "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). "A genuine factual dispute exists only if a reasonable fact-finder 'could find by a preponderance of the evidence that the [non-movant] is entitled to a verdict.'" Kernel Records Oyv. Mosley, 694 F.3d 1294, 1300 (11th Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 411 U.S. 242, 252 (1986)). "An issue of fact is 'material' if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case." Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (citations omitted). Facts are viewed and reasonable inferences are drawn in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007).

         "A nonmoving party, opposing a motion for summary judgment supported by affidavits cannot meet the burden of coming forth with relevant competent evidence by simply relying on legal conclusions or evidence which would be inadmissible at trial." Avrigan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). As such, the non-moving party's evidence "cannot consist of conclusory allegations or legal conclusions." Id. (citations omitted).

         II. Lavonne "Penny" Lamar

         A. Count I - Retaliation in Violation of Title VII

         i. Material Facts

         Penny Lamar began her employment with DCNR in 1985 and was assigned to Gulf State Park. (Lamar Dep. 9:10-20, Dkt. 90-18). In February 2007, she was appointed as Parks Facilities Operator. (Lamar Dep. 17:17-18:23, Dkt. 90-18). In April 2012, Lisa Laraway was hired as the Superintendent at Gulf State Park. (Laraway Aff. ¶ 3, Dkt. 90-4).

         In June 2012, Lamar complained of race discrimination to William Key. (Lamar Dep. 78:11-79:8, 82:6-19, Dkt. 90-18; Key Dep. 189:14-18, 240:7-241:7, Dkt. 90-55). At the end of October or early November 2012, Lamar complained to Harry Dwyer, the golf professional at the park, that she had been discriminated against. (Dwyer Personnel Board Test. 552; 1-9, Dkt. 117-2).

         In a December 17, 2012 email titled "Racial Discrimination at workplace, " which recapped her conversation with Dwyer on December 11, 2012 in which she complained about discrimination, retaliation, and hostile work environment, Lamar formally complained. (Lamar Email, Dec. 17, 2012, Dkt. 113-3). She sent the email to Dwyer, Greg Lein, Alabama State Parks Director, and JefT Greene, Personnel Manager. (Lamar Email, Dec. 17, 2012, Dkt. 113-3). On December 18, 2012, the same email was sent and/or forwarded to Dwyer, Laraway, Randy Stults, park ranger and pier manager, Michael Guinn, assistant superintendent at Gulf State Park, and Lamar's counsel. (Dkt. 91 -8).

         On or about December 19th and 20th, Major Scott Bannon began investigating Lamar's complaints. He interviewed Stults and Laraway as part of his investigation. (Bannon Report, Dkt. 113-14). Bannon finalized his report on January 30, 2013, concluding that Lamar did not experience "apparent or overt racial discrimination or hostile work environment." (Bannon Report, Dkt. 113-14). During the course of the investigation, on January 10, 2013, Lamar emailed Stults requesting a meeting with him, Nicole Cabarrubia, Laraway's assistant, and Guinn "to discuss work related issues." (Lamar Email, Jan. 10, 2013, Dkt. 116-2). Stults forwarded Lamar's email to Laraway and in an email later that day told Laraway that "[t]his jazz is getting old with [Lamar], lol [.]" (Stults Email, Jan. 10, 2013, Dkt. 116-2).

         Trinese Lamar Wiley, Lamar's daughter and a Gulf State Park employee assigned to the pier, was sent home on February 19, 2013 by Stults. (Wiley Email, Mar. 13, 2013, Dkt. 83-16; Wiley Time Card, Dkt. 83-8). She was told not to come back until she was contacted. (Larway Email, Mar. 18, 2013, Dkt. 116-4). Stults testified that Wiley was terminated because of "[j]ob abandonment, 24 plus hours, no contact, no calling in." (Stults Dep. 65:9-12, Dkt. 90-25). He testified that "we had tried to call and couldn't make contact." (Stults Dep. 68:6-8, Dkt. 90-25).

         Stults' testimony is expressly contradicted, however, by the testimony of Teresa Carlisle, the assistant manager of the pier. She testified that Stults changed the schedule, that Wiley was unaware of the schedule change, that Stults told her that if she called Wiley she would be fired, and that Wiley did not miss scheduled shifts.^[7] (Carlisle Dep. 50:23-51:2, 53:4-9, Dkt. 118-7). And Wiley's formal termination was delayed because:

I know this is not an excuse but a reason. With all that is going on with Penny and Bill this was a touchy situation that we needed to tip toe on. She didn't show up for work and when she did we told her to go home and we would contact her if we needed her. Then Penny starting snooping around and we just didn't want to do a formal termination until we let things rest a little. Once she emailed Randy and asked what we were doing is when he said she was terminated....

(Laraway Email to Tim Wishum, the Operations and Maintenance Supervisor and copied to Stults, Mar. 18, 2013, Dkt. 116-4).

         ii. Discussion

         To establish a prima facie case of Title VII retaliation, a plaintiff must show that "(1) she engaged in an activity protected under Title VII; (2) she suffered an adverse employment action; and (3) there was a causal connection between the protected activity and the adverse employment action."^[8] Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008). If a plaintiff establishes a prima facie case, the burden shifts to the defendant to proffer a legitimate, non-retaliatory reason for the adverse employment action. Coutit v. Martin County Bd. of County Com 'rs, 47 F.3d 1068, 1075 n. 54 (11th Cir. 1995). If defendant does so, the burden shifts to the plaintiff to establish that the proffered reasons were a pretext for retaliation. Chapman v. AI Tramp., 229 F.3d 1012, 1024-25 (11th Cir. 2000). In this respect, it must be evaluated "whether the plaintiff has demonstrated such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence." Silvera v. Orange Cty. Sch. Bd, 244 F.3d 1253, 1258 (11th Cir. 2001) (quoting Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997)) (internal quotation marks omitted). If the plaintiff proffers sufficient evidence to create a genuine issue of material fact regarding whether the reasons were pretextual, the employer is not entitled to summary judgment. Id. at 1025.

         Lamar presents evidence sufficient to state a prima facie case for retaliation. She engaged in protected activity as early as June 2012 and as late as December 17, 2012 when she complained of discrimination. Laraway and Stults learned of her protected activity on December 17th and 18th, respectively. Stults effectively terminated Lamar's daughter on February 19, 2013, just two months later. That was temporally sufficiently to Lamar's protected activity to create a material factual dispute as to causation. Compare O'Neal v. Ferguson Const. Co., 237 F.3d 1248, 1253 (10th Cir. 2001) (one and one half month period may establish causation), with Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (three to four month gap is insufficient to show causation in Title VII retaliation case); Thompson v. N, Am, Stainless, LP, 562 U.S. 170, 175, 131 S.Ct. 863, 868, 178 L.Ed.2d 694 (2011) (firing a close family member will almost always be an adverse employment action). Even if the two month delay was too long, it is not fatal, considering that additional evidence shows causation. See Thomas, 506 F.3d at 1364. A reasonable jury could draw an inference from Carlisle's testimony and Stults' email that Wiley was terminated because of Lamar's complaints of discrimination.

         Defendants offer as the legitimate, non-retaliatory reason for Wiley's termination that she failed to report for her assigned schedule. However, Lamar proffers sufficient evidence to create a genuine issue of material fact as to whether Defendants' proffered legitimate, non-retaliatory reasons for Wiley's termination were pretextual. In the two months leading to Wiley's termination, Stults was interviewed by Bannon regarding Lamar's complaints, Stults stated that "this jazz with [Lamar] is getting old", and Carlisle testified that Stults changed the schedule without notice to Wiley and told her she would be fired if she called Wiley. (Bannon Report, Dkt. 113-14; Stults Email, Jan. 10, 2013, Dkt 116-2; Carlisle Dep. 50:23-51:2, 53:4-9, Dkt. 118-7). And after Wiley's effective termination, Laraway delayed her "formal termination" because "Penny start[ed] snooping around." (Laraway Email, Mar. 18, 2013, Dkt. 116-4).

         Because the evidence is sufficient for a reasonable jury to find that Defendants' proffered reasons were prextual, Defendants Motion for Summary Judgment as to Lamar's Retaliation claim against DCNR will be denied.

         B. Count II - Retaliatory Hostile Work Environment

         Lamar's retaliatory hostile work environment claim requires that she show she was subject to unwelcome harassment, that the harassment was based on her engaging in protected activity, and that it was sufficiently severe or pervasive to alter the terms and conditions of her employment. See Kelly v. Dun & Bradstreet, Inc., 641 F.App'x 922, 923 (11th Cir. 2016) (citing see Gowski v. Peake, 682 F, 3d 1299, 1311 (11th Cir. 2012)). The work environment must be subjectively perceived by her as hostile, and objectively perceived as hostile by a reasonable person. Gowski, 682 F.3d at 1311.

         i. Material Facts

         a. Lamar's Perception

         Lamar's December 7, 2012 "Employee Performance Midappraisal" signed by Stults and Laraway stated that she did a good job with customers in the park, that she would be provided additional training on the reservation system, and that she was instructed to use email to communicate with headquarters regarding reservations. Laraway and Stults learned of Lamar's formal complaint of discrimination on December 17 and December 18, 2012 respectively.

         Lamar relies on a series of events between January 2013 and August 2013 in support of her claim that she suffered a retaliatory hostile work environment after complaining about discrimination.

         On or about January 8, 2013, Laraway's assistant, Cabarrubia, falsely accused Lamar of ' failing to block reservations properly. (Lamar Aff. ¶ 60, Dkt. 118-4). During a phone call with Lamar the following day, Lamar "asked [Cabarrubia] if [Lamar] was the only one [Cabarrubia] was checking behind and [Cabarrubia] said yes[.]" (Cabarrubia Notes, Jan. 9, 2013, Dkt. 116-1).

         On February 19, 2013, Lamar's daughter was sent home by Stults, effectively terminating her. And on February 21, 2013, Stults drafted a statement memorializing a warning disciplinary action with Lamar on November 21, 2012, (Dkt. 112-13), but Stults provides no explanation for why the statement was drafted three months after the disciplinary action.

         In March 2013, Lamar was transferred to the beach pavilion, but was not provided enough assistance for her responsibilities there. (Lamar Dep. 160:7-16, Dkt. 90-18). Previously, Lamar was allowed to hire seasonal workers but after her transfer, she was the only facility operator that could not hire seasonal workers. (Lamar Dep. 162:1-15, Dkt. 90-18; Lamar Aff. ¶ 63, Dkt. 118-4). Lamar had to request volunteers to assist at the pavilion from other departments, rather than having her own dedicated volunteers. (Lamar Dep. 164:1-23, 165:16-23, Dkt. 90-18).

         On March 22, 2013, Lamar met with Laraway, Cabarrubia, and Stults concerning her use of volunteers to assist at the beach pavilion. (Lamar Dep. 145:11-148:23, Dkt. 90-18; Lamar Aff. ¶ 67, Dkt. 118-4). During the meeting, Laraway and Stults were "[s]creaming and hollering." (Lamar Dep .149:8, Dkt. 90-18). Laraway was "sitting on her foot, on the couch, j umping up and down" and told Stults to "[t]ell her what her damn job is[.]" (Lamar Dep. 149:13-16, Dkt. 90-18).

         On April 29, 2013, Lamar was told by Teresa Bailey, the assistant campground manager, that the pavilion was allowed one volunteer but that the pier manager loaned her the two pier volunteers to use at the pavilion. (Bailey Email, Apr. 29, 2013, Dkt. 91-10 at p. 36). On May 1, 2013, Laraway emailed "I was very clear that you were the only one person that was to be working in the booth during the week and the volunteers were to ONLY work on the weekend."^[9] (Laraway Email, May 1, 2013, Dkt. 91-10).

         Lamar was isolated at the pavilion, could not take breaks, and became paranoid. (Lamar Dep. 168:1 -23, Dkt. 90-18). She testified that Laraway "made it hard for [her] to cover or do her job" because she was the only one at the pavilion to handle the responsibilities. (Lamar Dep. 169:2-3, Dkt. 90-18)

         In May 2013, Lamar received a performance appraisal score of 12, (Dkt. 113-8), a significant decrease from her past scores which averaged 35.6 over the prior five years. (See Dkts. 91-5, 91-6) (2008 - 37.1, 2009 - 37.1, 2010 - 37.1, 2011 - 34.2, 2012 - 34.2).

         In June 2013, Lamar was accused of failing to meet with a client regarding a pavilion reservation. (Lamar Aff. ¶ 79, Dkt. 118-4). However, the appointment was scheduled for Lamar's day off and it was not noted on Lamar's calendar. (Id.).

         In July or August 2013, Lamar was reassigned to the pro shop to replace a seasonal clerk. (Lamar Dep. 184:12-19, 276:8-277:3, Dkt. 90-18). Although she maintained the title of Park Facility Operator, her reassignment of duties required "substantially fewer skills and responsibilities." (Lamar Aff. ¶ 84, Dkt. 118-4).

         Finally, on August 17, 2013, Lamar was issued a written reprimand by Stults for missing the June 10, 2013 meeting with a guest regarding the pavilion meeting. (Dkt. 91-13). There is no explanation for why the written reprimand was issued two months after the incident.

         b. Additional Park Employees' Perceptions

         Additionally, Lamar presents testimony from four former employees of Gulf State Park and summaries by unidentified individuals to support her retaliatory hostile work environment claim. (Dkt. 102 at 39).^[10]

         Harry Dwyer

         Dwyer was the golf pro who operated the golf shop at Gulf State Park. (Dwyer Dep. 18:12-20, 23:11-19, Dkt. 90-11). During Laraway's first 90 days at Gulf State Park, he met with her privately. (Dwyer Dep. 49:4-10, Dkt. 90-11). During the meeting, Laraway said, "This park'sin for a rude awakening, " (Dwyer Dep. 51:12-17). Dwyer testified that she "made it perfectly clear that she can do anything that she wants, that she was given permission by [Deputy Commissioner] Curtis Jones." (Dwyer Dep, 269:14-16, Dkt. 90-11).

         Dwyer met with Laraway regarding Larmar's job duties at the pro shop. (Dwyer Dep. 91:5-18). When Dwyer asked why Lamar, the only black facility operator and only black merit employee, was moved from the beach pavilion to a clerk position at the pro shop, Laraway told him that "Penny is not the right kind of people for that job." (Dwyer Dep. 92:9-18, 103:20-104:14, Dkt. 90-11). Dwyer believed Laraway had a racial bias against Lamar based on her treatment of Lamar, her statement regarding Lamar, her asking Lamar to do nominal duties, her failure to supply Lamar with training, tools, and proper personnel, and her demotion of Lamar. (Dwyer Dep. 96:14-97, Dkt. 90-11). Hetestified that "Penny wasn't beingtreated like the other employees." (Dwyer Dep. 176:19-23, Dkt 90-11).

         In August 2013, Laraway called Dwyer into a meeting with Guinn and told him that she was asking for his suspension. (Dwyer Dep. 221:21-222:3, Dkt. 90-11). Dwyer was told he was being insubordinate, that he was undermining Laraway, and that "[he] had no business whatsoever to talk about - or report[] her for Lamar and Key[]." (Dwyer Dep. 222:9-19, Dkt. 90-11).

         Dwyer filed his own Equal Employment Opportunity Commission ("EEOC") claims in January and December 2014. (Dwyer Dep. 244-248, Dkt. 90-11). He resigned in January 2015. (Dwyer Dep. 25:1-3, Dkt. 90-11).

         Teresa Carlisle

         Teresa Carlisle, a white female, was the assistant pier manager at Gulf State Park. (T. Carlisle Dep. 22:14-19; 29:21-23, Dkt. 118-7). She testified that the park "was very hostile." The examples she gave were the treatment of her daughter and that she heard that Laraway yelled and screamed at other people. (T. Carlisle Dep. 98-99, Dkt. 118-7).

         According to Carlisle, in July 2013, Laraway fired her 16 year old daughter, Stephanie Carlisle ("Stephanie"), a white female, for sending an inappropriate text. (T. Carlisle Dep. 28-29, Dkt. 118-7). The night after Key's termination hearing, Laraway called Stephanie, who was at home with her mother. (T. Carlisle Dep. 27, Dkt. 118-7). Carlisle heard Stephanie crying and went to investigate. (T. Carlisle Dep. 27:16-17, Dkt. 118-7). While she was standing in Stephanie's doorway, she heard Laraway "screaming on the phone" and telling Stephanie "[d]on't ever come back to Gulf State Park." (T. Carlisle Dep. 27:14-21). Carlisle did not address Stephanie's termination with Laraway for "fear of retaliation of losing [her] job." (T. Carlisle Dep. 28:19-29:1).

         Laraway never yelled or screamed at Carlisle, Carlisle's performance appraisals in 2010, 2011, and 2012 exceeded standards, and Carlisle did not have any concerns about her 2013 performance appraisal. (T. Carlisle Dep. 37-42, 90:10-12, Dkt. 118-7). She resigned in lieu of being terminated in December 2014.^[11] (T. Carlisle Dep. 69-70, Dkt. 118-7).

         Laraway testified that she saw a text that "basically said about things that were happening at [Key's termination] hearing, " and that she told Stephanie to stay out "the Bill Key thing.^[12](Laraway Dep. 54:16-20, Dkt. 90-20).

         Glenda ...