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Duncan v. State

United States District Court, M.D. Alabama, Northern Division

April 27, 2017

STATE OF ALABAMA, et al., Defendants.




         This case is before the court on a Motion for Summary Judgment (Doc. #42), filed by the Defendants on February 3, 2017.

         The 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).

         For the reasons to be discussed, the Motion for Summary Judgment is due to be GRANTED.


         Summary 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).

         The 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.

         Both 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 other materials.”

         To 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 (1986).

         After 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).

         III. FACTS

         The submissions of the parties establish the following facts, construed in a light most favorable to the non-movant:

         The 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.

         Duncan 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 Standards.”

         On 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).

         Shortly 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).

         On 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.

         On May 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.

         On May 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.

         On May 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.

         Ronda 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).

         On June 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).

         On June 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.

         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.

         On August 6, 2013, Brendle and Flowers recommended that Duncan attend supervisor referred Employee Assistance Program (“EAP”) counseling. Duncan attended the counseling.

         On 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.

         Duncan was then given a hearing date of September 4, 2013. The hearing date was extended to October 18, 2013.

         After 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).

         On 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.

         On 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 ...

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