Scott v. State, Department of Human Resources

          MEMORANDUM OPINION

          R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE

         This 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).

         Ultimately, 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.

         I. Statement of Facts^[1]

         A. Plaintiff's Employment History Before 2013

         Plaintiff, 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).^[2] Jeff. Co. DHR promoted her from social worker to service supervisor in 2001. (Id. at 2; Regina Scott Deposition ("Scott Deposition") at 19).^[3] 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.).

         Plaintiff 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).

         Plaintiffs 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).

         Plaintiff 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.^[4] (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).

         Despite 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).

         B. Plaintiff's Applications for a Promotion Between 2004 and 2013

         Plaintiff 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.^[5] (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).

         C. Plaintiff's Job Performance in 2013

         Kimberly 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).

         Plaintiff 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).

         In July 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).

         In 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.^[6] (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. (Id.).

         One 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.^[7] (McClintock Deposition at 40).^[8] 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).

         Courtney 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).^[9] 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).

         Plaintiff worked as an on call supervisor on November 28, 2013 and November 29, 2013.^[10] (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).^[11] 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).

         Plaintiff 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).

         A Jeff. 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).

         D. The Charge Letter, Administrative Hearing, and Termination

         Hall 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 drafted. (Id.).

         McClintock 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.).

         Second, 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 vendors." (Id.).

         Finally, 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).

         Jeff. 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 45).

         Plaintiff 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 contact:

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).

         Russell, 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 80).

         Hall 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. at 117).

         McClintock 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).

         On 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.).

         Plaintiff 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 ...