United States District Court, M.D. Alabama, Southern Division
LAVONNE "PENNY" LAMAR and WILLIAM K. KEY, Plaintiffs,
STATE OF ALABAMA DEPARTMENT OF CONSERVATION AND NATURAL RESOURCES, ., Defendants.
D. WHITTEEMORE United States District Judge
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,  and a de novo
review, the recommendations in the R&R are adopted, as
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).
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.
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
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. 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. 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. While there may
be some factual misstatements in his recitation, his legal
conclusions are spot on.
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
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).
Lavonne "Penny" Lamar
Count I - Retaliation in Violation of Title VII
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).
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,
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).
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).
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).
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. (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).
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." 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.
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
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).
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.
Count II - Retaliatory Hostile Work Environment
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.
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.
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
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).
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
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).
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).
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." (Laraway Email, May 1, 2013, Dkt. 91-10).
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,
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).
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
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).
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.
Additional Park Employees' Perceptions
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).
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.
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).
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,
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).
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.
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).
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. (T. Carlisle Dep. 69-70, Dkt.
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.(Laraway Dep. 54:16-20, Dkt.