United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER
HAROLD ALBRITTON SENIOR UNITED STATES DISTRICT JUDGE
case is before the court on a Motion for Summary Judgment
(Doc. #42), filed by the Defendants on February 3, 2017.
Plaintiff filed a Complaint in this case on June 12, 2015,
bringing claims against the State of Alabama and the Alabama
Department of Transportation for retaliation in violation of
Title VII of the Civil Rights Act of 1964 (Count I) and
against Kathy Brendle and Bill Flowers for race
discrimination pursuant to 42 U.S.C. §1983 (Count II).
reasons to be discussed, the Motion for Summary Judgment is
due to be GRANTED.
SUMMARY JUDGMENT STANDARD
judgment is proper "if there is no genuine issue as to
any material fact and . . . the moving party is entitled to a
judgment as a matter of law." Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
party asking for summary judgment "always bears the
initial responsibility of informing the district court of the
basis for its motion, ” relying on submissions
“which it believes demonstrate the absence of a genuine
issue of material fact." Id. at 323. Once the
moving party has met its burden, the nonmoving party must Ago
beyond the pleadings” and show that there is a genuine
issue for trial. Id. at 324.
the party “asserting that a fact cannot be, ” and
a party asserting that a fact is genuinely disputed, must
support their assertions by “citing to particular parts
of materials in the record, ” or by “showing that
the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed.R.Civ.P.
56 (c)(1)(A), (B). Acceptable materials under Rule
56(c)(1)(A) include “depositions, documents,
electronically stored information, affidavits or
declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or
avoid summary judgment, the nonmoving party "must do
more than show that there is some metaphysical doubt as to
the material facts." Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). On the
other hand, the evidence of the nonmovant must be believed
and all justifiable inferences must be drawn in its favor.
See Anderson v. Liberty Lobby, 477 U.S. 242, 255
the nonmoving party has responded to the motion for summary
judgment, the court shall grant summary judgment 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).
submissions of the parties establish the following facts,
construed in a light most favorable to the non-movant:
Plaintiff, Janice Duncan, is an African-American employee of
the Alabama Department of Transportation
(“ALDOT”). The Defendants in this case are the
State of Alabama, ALDOT, Bill Flowers
(“Flowers”), and Kelly Brendle
(“Brendle”). Flowers is ALDOT's Chief
Financial Officer/Director of Finance and Audits. Brendle is
an Accounting Director II and has the title of Deputy
Director of Finance & Audits.
began her employment with the State of Alabama in the Finance
Department in 1981. In 1999, she was appointed to a position
of Accountant II at ALDOT. In 2008, she was appointed to an
Accounting Manager job. For the appraisal period of July 1,
2010 to July 1, 2011, Duncan received a 36.40, “Exceeds
Standards.” For the appraisal period of July 1, 2011 to
July 1, 2012, Duncan received a 35.50, “Exceeds
April 3, 2013, Duncan asked Flowers and Brendle to reallocate
her position to Accounting Director I. Reallocation is a term
used by the State of Alabama when it moves an incumbent
employee to a higher job classification outside of the
promotional process. Duncan has cited to evidence to show
that a reallocation hinges on a desk audit which seeks to
confirm that an employee has been performing tasks associated
with a different or higher job classification than the
employee holds. The Defendants cite to the Affidavit of Steve
Dukes, Chief of ALDOT's Personnel Bureau, in which he
states that if the State Personnel Department approves the
placement of an employee into a new job classification as a
result of the reallocation process, the employee receives
permanent status at that time, and does not automatically
receive a pay increase, but does move into a pay grade which
has a higher maximum salary available. (Doc. #41-1 at p.9).
after Duncan requested the reallocation, Duncan implemented
new work rules. She states that she did this in response to a
request from Brendle to address behaviors of employees in the
Fiscal Section. Brendle states in an Affidavit that there was
an increase in employee complaints to Brendle after Duncan
implemented the new work rules. (Doc. #41-14 p.6).
April 26, 2013, Duncan initiated a written informal
counseling against a white female and an African-American
male employee, and Brendle asked Duncan to rescind the white
female employee's discipline, but did not ask her to
rescind discipline given to an African-American employee.
1, 2013, Duncan asked to meet with Brendle and Flowers to let
them know that new rules had been implemented. Duncan
contends that Flowers and Brendle used the meeting to
criticize her management style and gave her a written
informal counseling form.
10, 2013, Duncan filed a complaint with ALDOT's internal
EEO department regarding the counseling she received on May
1. She identified “racial and insulting verbal
comments” in the attachment to the claim form.
14, 2013, Tamiko Jordan (“Jordan”), an
African-American employee, filed a race discrimination
complaint with ALDOT's internal EEO office, listing
Duncan as a possible witness.
Brooks, an investigator for the Compliance and Business
Opportunities Bureau, investigated Duncan's complaint. On
June 14, 2013, Duncan was interviewed by Ronda Brooks and
provided information on her own and Tamiko Jordan's
complaints. Brooks completed the investigation of
Duncan's complaint and informed Ellen Leonard, Special
Counsel to ALDOT, that she could not find evidence Duncan had
been treated unfairly or differently because of her race.
(Doc. #41-6 at p.4).
24, 2013, Duncan received an appraisal rating of 33.60 from
Brendle. This score was lower than Duncan's previous
appraisal, but still fell within “Exceeds
Standards.” Brendle states in an Affidavit that she
gave Duncan this appraisal because although her accounting
work was excellent, she had issues in the areas of
communication and supervision. (Doc. #41-14 at p.6).
27, 2013, Kathy Prevo (“Prevo”), an
African-American ALDOT employee, was in tears and complained
to Brendle that Duncan was putting pressure on Prevo to
support Duncan if Duncan were questioned about things
happening in the department. (Doc. #41-14 at p.8). The next
day, Prevo voiced a complaint regarding an incident with
Duncan in which Duncan gave her a print out of an email and
then attempted to buy it back from Prevo. (Doc. #41-14 at
p.9). Prevo was removed from Duncan's section by Brendle.
discussed issues regarding Duncan with Flowers, and Flowers
went to Lamar S. Woodham, Jr. (“Woodham”), Deputy
Director for Administration at ALDOT, to ask for an
investigation. Woodham recommended Maxine Wheeler
(“Wheeler”), and she was asked to conduct
interviews. Wheeler conducted interviews on July 9, 2013 and
July 10, 2013. Wheeler states in an affidavit that she
interviewed employees Christie Baird, Janice Duncan, Kristina
Davis, Mary Johnson, Melodee Major, Shirley Mays, Glenda
Motley, Dedrick McDade, Tiffany Patton, Kathy Prevo, Danielle
Robert, Beth Rosser, Annette Turner, and Schenese Wade. (Doc.
#41-38). Wheeler states in the affidavit that she determined
that Duncan's conduct constituted a violation of work
rules including failure to perform the job properly,
inattention, disruptive conduct, and abusive and threatening
language. Id. Wheeler prepared a report and
submitted it to Brendle. Id. at p. 21.
August 6, 2013, Brendle and Flowers recommended that Duncan
attend supervisor referred Employee Assistance Program
(“EAP”) counseling. Duncan attended the
August 7, 2013, Flowers wrote a memo to Steve Dukes, Bureau
Chief-Personnel Bureau, and recommended disciplinary action
for Duncan in the form of demotion from the level of Senior
Accountant, based on abusive and threatening language,
insubordination, and disruptive conduct. Heidi Mense
(“Mense”), an investigator for the Compliance and
Business Opportunities Bureau, conducted a review of the
recommendation and provided a memorandum with her findings. A
Disciplinary Review Committee then reviewed the
recommendation and at least two of the three members approved
the recommendation. (Doc. #41-1 at p.10). On August 23, 2013,
after the reviews of his recommendation, Flowers gave Duncan
a letter stating that he was recommending her for demotion.
was then given a hearing date of September 4, 2013. The
hearing date was extended to October 18, 2013.
hearing from witnesses, the Hearing Officer, DeJarvis Leonard
(“Leonard”), determined that Duncan's
demotion was warranted for the reasons given in Wheeler's
report. Leonard stated in an Affidavit that the evidence at
the hearing warranted demotion “for the reasons given
in the Maxine Wheeler's July 25, 2013 report, which was
offered as ALDOT's first exhibit at the hearing, and not
for any other reasons.” (Doc. #41-44 at p.4). Woodham
received the letter from Leonard and approved the involuntary
demotion of Duncan. Woodham states in his affidavit that he
relied on the recommendation of Leonard in approving the
demotion of Duncan. (Doc. #41-37).
September 27, 2013, Duncan submitted a Charge of
Discrimination to the Equal Employment Opportunity Commission
(“EEOC”). Duncan signed an Amended EEOC Charge
and returned it with a cover letter in October of 2013. In
her cover letter Duncan complained that Brendle and Flowers
acted adversely to her because of her internal complaint to
ALDOT in May of 2013 and because of her participation in
Jordan's internal complaint in May of 2013.
March 27, 2014, pursuant to State Personnel Department rules,
Duncan was removed from the promotional register for the
Accounting Director I job classification because she had been
on the register for two years. Duncan was also removed from
the open/competitive ...