United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
case is before the court on Defendants' Motion for
Summary Judgment (Doc. # 52), filed November 4, 2016 by
Defendants Alabama Department of Human Resources ("Ala.
DHR") and Jefferson County Department of Human Resources
("Jeff. Co. DHR"). The parties have fully briefed
the motion, and it is under submission. (Docs. # 53, 61, 66).
the undisputed evidence shows that this case arises from
Plaintiffs refusal to accept the consequences of a serious
mistake she made and a serious breach of her employer's
policies. Plaintiff contends that Defendants (a)
discriminated against her on the basis of race and/or sex by
denying her various promotions, (b) discriminated against her
on the basis of race and/or sex by terminating her due to
conduct for which similarly situated supervisors were not
terminated, (c) retaliated against her for making complaints
protected under Title VII of the Civil Rights Act of 1964
("Title VII") by assigning her a larger caseload
than comparable supervisors and terminating her for
pretextual reasons, and (d) created a hostile work
environment through unwarranted discipline and an unlawful
termination. As an initial matter, many of these claims are
barred from the court's consideration because Plaintiff
did not present them in her Equal Employment Opportunity
Commission ("EEOC") charge. Moreover, and in any
event, Defendants are entitled to summary judgment on all of
Plaintiffs claims because she has not presented a, prima
facie case of unlawful discrimination, retaliation, or
maintenance of a hostile work environment. Alternatively,
Defendants are entitled to summary judgment on Plaintiffs
discriminatory termination claims because Plaintiff has not
cast doubt upon their legitimate, nondiscriminatory reason
for terminating her. Finally, Defendants are entitled to
Eleventh Amendment immunity for Plaintiffs 42 U.S.C. §
1983 claim premised on alleged equal protection violations.
Statement of Facts
Plaintiff's Employment History Before 2013
an African-American female, was hired by the Walker County
Department of Human Resources as a social worker in 1998.
(Docs. # 62-1; 64-1 at 1). Plaintiff transferred to Jeff. Co.
DHR in 1999. (Doc. # 54-3 at 8). Jeff. Co. DHR promoted her
from social worker to service supervisor in 2001.
(Id. at 2; Regina Scott Deposition ("Scott
Deposition") at 19). As a service supervisor, Plaintiff
monitored social workers, reviewed their work, assigned cases
to them, attended conferences, and coached social workers on
the policies and procedures of Jeff. Co. DHR. (Scott
Deposition at 19-21). Plaintiff usually supervised eight to
ten social workers, each of whom were generally assigned
twenty to thirty cases at a time. (Id. at 22-23).
Plaintiffs performance appraisal scores fell within the
"Meets Standards" range in August 2001 and August
2002. (Doc. # 54-2 at 92, 98). Plaintiffs supervisor placed
her on an individual development plan in April 2002 because
of "a lack of accurate assessments" in her case
reviews, problems with her unit's mastery of the
"ISP process, " and her inability "to identify
appropriate services and develop creative services for
families and children." (Id. at 94-95).
Plaintiff submitted a rebuttal to her 2002 performance
evaluation. (See Doc. # 62-4 at 1-2). The rebuttal
discussed mitigating factors, such as her subordinates'
lack of experience, that she believed should have been
considered in the performance appraisal. (Id.). But,
in her rebuttal, Plaintiff did not complain about any
incidents of discrimination. (Id.).
received a verbal warning in February 2003 about her
unit's performance. (Doc. # 54-2 at 91). Nevertheless,
she received a "Meets Standards" performance
appraisal in July 2003. (Id. at 90). In August 2003,
Jeff. Co. DHR's director charged Plaintiff with violating
safety rules which endanger life or property and seriously
violating the department's other rules. (Id. at
42-43). According to the charge letter, Jeff. Co. DHR
obtained a "pickup order" for a child on June 9,
2003. (Id. at 42). Plaintiff became aware that the
order had not been executed around June 30, 2003.
(Id.). But, she took no action to ensure that the
child was picked up until July 17, 2003. (Id).
Plaintiff accepted Jeff. Co. DHR's finding that she had
violated the Rules of the State Personnel Board and waived an
administrative hearing. (Id. at 88). Thereafter,
Jeff. Co. DHR's director suspended Plaintiff for four
days. (Id. at 86). Plaintiffs performance appraisal
in July 2004 did not meet Jeff. Co. DHR's standards,
mainly due to a significant deduction for her August 2003
suspension. (Id. at 84-85).
supervisor issued her a written warning in April 2006.
(Id. at 79-80). That warning stated that Plaintiffs
unit had closed several cases without meeting
"investigative standards." (Id. at 79). It
recounted that Plaintiff was informed of the problem during
earlier conferences, and noted one case where a social worker
in Plaintiffs unit failed to contact a family for three
months after being assigned to a case. (Id.).
Finally, it faulted Plaintiff for not submitting weekly day
sheets for her unit. (Id.). Plaintiffs July 2006
performance appraisal asserted that she met Jeff. Co.
DHR's standards. (Id. at 76). Nevertheless,
Plaintiffs supervisor noted "some concerns in the
quality of work performed in her unit and supervisory
monitoring." (Id. at 78).
received another written warning in July 2007. (Id.
at 73). That warning stated that Plaintiff received a call
from a social worker while she was the supervisor on call in
May 2007. (Id.). The social worker reported that
"a child had marks and bruises as well as a history of
marks and bruises by the step-father in the home."
(Id.). Plaintiff instructed the social worker that
she did not need to travel to the site of the reported
incident. (Id.). According to Plaintiffs supervisor,
this instruction violated Jeff. Co. DHR's on call
policies because a social worker needed to travel to the site
of a report if it alleged physical abuse and the abusive
parent or guardian was at the site. (Id.). Because
Plaintiff failed to instruct the social worker to go to the
site, Plaintiff failed to "ensure the child's
safety." (Id.). Plaintiff submitted a rebuttal
to the warning, in which she recounted that the social worker
received a report from a grandparent about a red mark on the
child's buttocks. (Doc. # 62-4 at 3). The child claimed
that his mother's boyfriend had spanked him.
(Id.). The social worker found two earlier reports
involving the child on a computer database. (Id.).
Two of the mother's children resided with their
grandparents, and the computer report did not indicate who
the third child resided with. (Id.). Plaintiff and
the on call social workers decided to not immediately respond
to the call because bruises did not constitute abuse under
Jeff. Co. DHR's "corporal punishment policy, "
the reported bruise was "moderate in degree, " and
the individual who spanked the child purportedly did so
"to correct the child." (Id.). Moreover,
Plaintiff claimed that she learned of the on call procedure
requiring immediate response to any report of physical abuse
in June 2007. (Id.). This rebuttal made no
allegations of discrimination. (See Id. at 3-4).
the July 2007 safety warning, Plaintiffs appraisal that month
rated her performance at an "Exceeds Standards"
level. (Doc. # 54-2 at 69). Plaintiffs performance reviews
remained at the "Exceeds Standards" level in 2008,
2009, 2010, and 2011. (Id. at 53, 58, 61, 65).
Plaintiff received another written warning in January 2012
for violating Jeff. Co. DHR's courtesy, respect, and
professionalism policy. (Id. at 49). A county
director overheard Plaintiff refer to a DHR manager "in
a derogatory manner" that included expletives.
(Id.). Plaintiffs supervisor still rated her
performance at an "Exceeds Standards" level in July
2012. (Id. at 46).
Plaintiff's Applications for a Promotion Between 2004 and
became qualified for a promotion from service supervisor to
program supervisor after she worked as a service supervisor
for one year. (Scott Deposition at 34). The Alabama Personnel
Department placed Plaintiff on a registry of qualified
individuals for program supervisor and program specialist
positions in 2004 or 2005. (Id. at 35-36). Jeff. Co. DHR
did not promote Plaintiff to program supervisor in March 2006
or April 2007. (Doc. # 62-17 at 2, 5). The Personnel
Department certified Plaintiff for a program supervisor
position in St. Clair County in November 2007, but another
individual was selected for the position. (Id. at
7). Likewise, another individual was promoted to a program
supervisor position in Cullman County in December 2007.
(Id. at 8). Jeff. Co. DHR did not promote Plaintiff
to a program supervisor position in January 2008 or September
2008. (Id. at 10-11, 14). Finally, Jeff. Co. DHR did
not promote Plaintiff to a program specialist position in
March 2011. (Id. at 17).
Plaintiff's Job Performance in 2013
Camp, a program supervisor for Jeff. Co. DHR, reprimanded
Plaintiff on June 19, 2013 for failing to perform her job
properly. (Doc. # 54-2 at 38). In April 2013, Camp asked one
of Plaintiffs social workers by e-mail why a Termination of
Parental Rights ("TPR") petition had not been filed
by Jeff. Co. DHR for a particular child (L.J.).
(Id.). The social worker assured Camp that the
necessary paperwork for the TPR petition would be completed
by May 31, 2013. (Id.). On May 3, 2013, a program
manager directed the workers in Jeff. Co. DHR's foster
care division, including Plaintiff, to complete all TPR
paperwork by May 31st for children in DHR custody for more
than 12 months. (Id.). (See also Scott Deposition at
85) (affirming that Plaintiff attended this meeting). On May
8th, the program manager sent the foster care staff a list of
the children for whom TPR petitions needed to be completed by
May 31st. (Id.). Plaintiff went on vacation from May
24th to June 3rd. (Doc. # 62-4 at 6). On June 6th, the
program manager sent the foster care staff another e-mail
directing them to submit all outstanding TPR petitions on the
earlier list by the next day. (Doc. # 54-2 at 38). The social
worker assigned to the L.J. case did not file the TPR
paperwork until June 11th, the date of a court hearing held
in the case. (Id.). Camp reprimanded Plaintiff for
failing to ensure that her employee met all deadlines.
(Id.). The reprimand resulted in a seven-point
deduction on Plaintiffs 2013 performance appraisal.
(Id. at 39).
submitted a rebuttal to Camp's reprimand. (Doc. # 62-4 at
5-6). She asserted that that the social workers in her unit
were carrying a higher caseload than the department's
standards. (Id. at 5). Additionally, the foster care
workers were assigned to assist neglect and abuse units three
days a week. (Id.). With regard to the L.J. case,
Plaintiff claimed that the social worker "worked
diligently on the case to achieve permanency, "
investigated whether the child's relatives could act as
guardians, and attempted to schedule meetings with Jeff. Co.
DHR's legal department on multiple occasions.
(Id. at 5-6). Plaintiff requested a meeting with the
legal department on May 17th, and the assigned social worker
scheduled a meeting on May 21st with a potential custodian
that was cancelled at the guardian ad litem's
request. (Id. at 6). Due to her scheduled vacation,
Plaintiff could not ensure that the worker filed the TPR
paperwork by the May 31st deadline. (Id.). In her
response, Plaintiff did not complain of discrimination by
Camp or any other employee in Jeff. Co. DHR. (See
Id. at 5-6).
2013, Camp appraised Plaintiffs performance at a "Meets
Standards" level. (Doc. # 54-2 at 35). Plaintiffs
"responsibility score" of 27.3 would have resulted
in an "Exceeds Standards" score, but Camp deducted
7 points because of the June 2013 reprimand. (Id. at
35-36). Camp also stated that Plaintiff did not
satisfactorily comply with Jeff. Co. DHR's rules.
(Id. at 35) (referring to the June 2013 reprimand).
August 2013, Angela McClintock, Jeff. Co. DHR's director,
sent Plaintiff and other service supervisors in her unit an
e-mail "summarizing the actions that needed to take
place" for children who (1) were younger than five
years' old and (2) had been under Jeff. Co. DHR's
supervision for more than one year. (Doc. # 54-3 at 60).
McClintock had met with Plaintiff and another service
supervisor on August 13th. (Doc. # 62-6 at 1). In the e-mail,
McClintock gave directions to two other supervisors for seven
cases and three cases, respectively. (Id. at 1-2).
In contrast, McClintock gave Plaintiff directions on how to
handle twenty-three cases. (Id. at 2-3). Plaintiff has
testified that her unit oversaw so many of these
high-importance cases because they were reassigned cases from
other units in Jeff. Co. DHR. (Scott Deposition at 225).
According to Plaintiff, some cases were transferred to her
unit when the department planned to file a TPR petition but
decided to look for other possible placements.
case discussed in McClintock's e-mail involved minor L.B.
(Doc. # 62-6 at 3). Jeff. Co. DHR had filed a TPR petition,
but the child's aunt wanted L.B. to be placed at her
residence. (Id.). This case was described as a
"child death case, " and the aunt previously had
allowed the mother involved in the case to be alone with the
child. (Id.). McClintock instructed Plaintiff to
staff the case with employees from Jeff. Co. DHR's legal
department as soon as possible "to see what viable
choice we have about TPR or placing with [the] aunt."
(Id.). McClintock was not informed of any actions
taken by Plaintiff to advance the case between August 13th
and September 13th. (McClintock Deposition at
The assigned social worker sent an e-mail on September 13th
asking about staffing for the case because it was set for a
trial on September 23rd. (Doc. # 54-3 at 68).
Hall, an assistant director at Jeff. Co. DHR, directed Andrea
McTyer, a program manager who supervised Plaintiff, to
collect all delinquent medical bills held by the foster care
department. (McTyer Deposition at 28-29). McTyer sent her
employees an e-mail directing them to submit the delinquent
bills by a deadline. (Id. at 29). After McTyer
collected all the delinquent bills submitted to her, Hall
asked her if the staff had more medical bills.
(Id.). When her employees submitted more medical
bills, Hall directed McTyer to write up any employee who had
submitted a medical bill following McTyer's second e-mail
because they had failed to submit the bills by the first
deadline. (Id. at 29-30). During her deposition,
McTyer recalled that other employees were disciplined for
failing to turn bills in on time. (Id. at 30). But,
she could not recall whether another employee besides
Plaintiff received discipline more severe than a write-up due
to the late submission. (Id. at 30-31).
worked as an on call supervisor on November 28, 2013 and
November 29, 2013. (See Doc. # 54-3 at 86)
(describing calls that Plaintiff received on November 29th).
Plaintiff received a call from a social worker at a hospital
on November 29th around 10:25 a.m. (See Hearing
Transcript at 63). The social worker informed Plaintiff
that a mother had given birth to a child and had initially
intended to place the child for adoption. (Id.). The
mother changed her mind about the adoption. (Id.).
The social worker expressed concerns that the mother lacked a
job or resources to supply food and diapers for the child.
(Id.). Plaintiff assigned the report to an on call
social worker, Karen Russell (id. at 64-65), a black
female (Scott Deposition at 303-04).
instructed Russell "to take the information and assess
the situation." (Hearing Transcript at 65). Russell
travelled to Jeff. Co. DHR's office and checked the
mother's history with the department. (Id. at
75-76). Upon finding no history of abuse or neglect in Jeff.
Co. DHR's system, Russell contacted a nurse at the
hospital and then called Plaintiff again. (Id. at
76-77). Russell and Plaintiff discussed the case. (Id. at
11). Russell informed Plaintiff that the mother had been
a victim in an earlier Jeff. Co. DHR case and that the
hospital had agreed to hold the child until the following
Monday to allow further investigation. (Scott Deposition at
171-72). Plaintiff instructed Russell to write up a report.
(Hearing Transcript at 77). Plaintiff did not expressly
instruct Russell to travel to the hospital for a face-to-face
contact with the social worker and the mother. (Id.
at 65-66) (testifying that she did not give Russell
instructions "either way" because she was an
experienced social worker). Plaintiff also contacted the
hospital's social worker to determine whether the social
worker needed assistance from a Jeff. Co. DHR employee.
(Scott Deposition at 172). The hospital's social worker
stated that she did not need assistance and that "the
baby was not to be discharged to anybody prior to Monday
unless it was an attorney." (Id. at 172-73).
Co. DHR employee contacted the hospital the following Monday
and discovered that the hospital had discharged the child.
(Hearing Transcript at 88). The employee spoke to the
child's mother but was unable to locate the child.
(Id.). The employee discovered that the child had
been put up for adoption after leaving the hospital.
(Id. at 89).
The Charge Letter, Administrative Hearing, and
instructed McTyer to draft a disciplinary charge against
Plaintiff. (McTyer Deposition at 55-56). McTyer could not
recall during her deposition if Hall instructed her to write
the charge after the September 2013 billing incident or after
the November 2013 incident. (Id. at 60). McTyer did
not draft a separate disciplinary letter for the TPR incident
that occurred in August and September 2013; Hall directed her
to add that information to the charge letter as it was being
issued Plaintiff a charge letter on December 9, 2013. (Doc. #
54-3 at 60-62). First, McClintock charged Plaintiff with
failing to perform her job properly and insubordination
because she had failed to follow McClintock's
"specific directive" to assign staff to the L.J.
TPR action as soon as possible. (Id. at 60).
According to McClintock, Plaintiffs conduct
"demonstrated a lack of planning on your part as the
supervisor, and it further demonstrated a failure to properly
plan for a child's permanency." (Id.).
McClintock charged Plaintiff with failure to perform her job
properly because Plaintiff had approved purchase orders for
medical bills that were over seven months old. (Id.
at 61). The charge letter averred that "[t]he bills and
attendant purchase order forms (1878's) were submitted
without being thoroughly reviewed by you as the signing
supervisor and didn't have adequate explanation as to why
the bills were not paid when they were received."
(Id. at 61). "Also, some of the invoices had
incorrect dates of service that did not match the
accompanying bill." (Id.). The charge letter
explained that Plaintiffs actions harmed Jeff. Co. DHR by
"creat[ing] an obstacle to promptly paying
McClintock charged Plaintiff with failure to perform her job
properly, violating safety rules which endanger life or
property, and insubordination because she did not instruct
Russell "to go to the hospital to make a first victim
contact." (Id. at 61). The charge claimed that
"the mother had an older three year-old child that was
not in her custody." (Id.). It further averred:
Your failure to send the worker to make contact has resulted
in the agency's inability to assess the safety of this
mother and baby. It has been the practice of the [Jeff. Co.
DHR] since 2005 that when the Department receives a call from
a Hospital, medical professionals or Law Enforcement Agency
after hours or on a weekend, the first victim contact must be
made immediately. This is mandatory. Therefore, it is
unacceptable that you would not instruct a worker to respond
immediately in person to a call from a Hospital. You are an
experienced supervisor and should know how the Department
responds to weekend on-call reports from the Hospital and
should provide on-call workers with clear direction regarding
the appropriate type of response.
(Id.). The charge described the prior discipline
Plaintiff received in 2003, 2006, 2007, and 2013.
(Id. at 61-62).
Co. DHR conducted an administrative hearing regarding the
charges in February 2014, at which Plaintiff was represented
by counsel. (Hearing Transcript at 1, 5). The hearing officer
heard testimony from witnesses before making a recommendation
of discipline to McClintock. (Id. at 8). At the
hearing, Plaintiff testified that she asked an attorney in
the legal department to assist with the L.J. case around
August 15th. (Id. at 25). Nevertheless, she took no
action on the case between August 15th and September 13th.
(Id. at 25-26). When reviewing one of the purchase
orders she approved on September 5, 2013, Plaintiff admitted
that the amount on the purchase order did not correspond to
the amount owed in the attached bill. (Id. at
39-40). She recalled that she had approved some of the
purchase orders because the supervisors for other workers
were not at the office when they were due. (Id. at
explained that an on call supervisor received messages from
Jeff. Co. DHR's answering service and dispatched workers
to handle the calls as necessary. (Id. at 47-49).
She attended on call training before her assigned on call
shift in November 2013 and signed a form confirming her
duties. (Id. at 53, 56). The supervisor task
statement form signed by Plaintiff on November 22, 2013
described the following cases that needed first victim
Supervisor will follow up with workers on-call to ensure that
contact is made with all child victims in cases with
allegations of abuse/neglect where the person allegedly
responsible will have access to the child prior to the next
business day. All calls from the hospital or law
enforcement require immediate contact.
(Doc. # 54-6 at 140-41) (emphasis in original). During the
hearing, Plaintiff insisted that Jeff. Co. DHR policy
required her to send a social worker to the hospital
"for cases that have allegations of abuse and
neglect." (Hearing Transcript at 55). She instructed
Russell to call the social worker at the hospital and, if
Russell believed that she did not need to conduct an in-
person examination, to "write it up" thoroughly
because she was "not making contact." (Id.
at 67-68). Plaintiff affirmed that her instructions were
contrary to the task statement form she signed on November
22nd. (Id. at 68).
a senior social worker at Jeff. Co. DHR, testified that she
never spoke with the mother before creating a report of the
call from the hospital. (Id. at 71, 77). She
conceded that she received disciplinary counseling for the
incident. (Id. at 79-80). She relied on Plaintiffs
directions when deciding to not visit the hospital, but she
conceded her own responsibility as well. (Id. at
claimed that the purchase orders and medical bills submitted
by Plaintiff contained several problems: (1) some bills were
over seven months old; (2) no explanation was given for the
tardy submission of the purchase orders; and (3) one purchase
order contained an error in the service authorization date.
(Id. at 110). He further testified that a supervisor
had to confirm the accuracy of the information on a purchase
order before signing it, even if he or she did not directly
supervise the individual submitting the form. (Id.
recommended to the hearing officer that Plaintiff be
terminated. (Id. at 122). She explained that
termination was justified by "the progressive
discipline" Plaintiff had received, the safety issues
resulting from Plaintiffs failure to give proper instructions
to Russell, and "the permanency concerns" resulting
from her handling of TPR cases. (Id.). McClintock
stated that Jeff. Co. DHR required employees to respond
in-person to calls from first responders because most cases
of severe abuse were reported by first responders, Jeff. Co.
DHR needed to maintain a good relationship with first
responders, and the first responders limited their calls to
emergency cases. (Id. at 123).
February 12, 2014, the hearing officer recommended that
Plaintiff be terminated from Jeff. Co. DHR. (Doc. # 54-5 at
115-16). She found evidence to support each of the charges
presented against Plaintiff. (Id.). She noted that
Plaintiff had received "a suspension, three warnings,
and a reprimand as part of the positive discipline
procedure." (Id. at 116). She determined that
Plaintiff had "failed to perform her job properly and
[had] continued to be insubordinate despite the corrective
action measures." (Id.). That day, McClintock
terminated Plaintiffs employment with Jeff. Co. DHR.
(Id. at 117). She justified the termination with the
recommendation from the hearing officer. (Id.).
appealed the termination decision to the Personnel Board of
the State of Alabama. (Doc. # 62-14). She denied the charges
against her, claimed that termination was too severe, and
requested a hearing before the Personnel Board.
(Id.). An Administrative Law Judge ("ALJ")
conducted a hearing in April 2014. (Doc. # 54-12 at 2).
During the ALJ's hearing, Plaintiff testified "that
in the past, the social workers and supervisors could use
their own discretion to determine when an actual contact
needed to be made." (Id. at 8). Nevertheless,
she also reviewed the task statement form during the