United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
MADELINE HUGHES HAIKALA, UNITED STATES DISTRICT JUDGE.
Renda Samuels works for the City of Birmingham's Traffic
and Engineering Department. According to Ms. Samuels, the
City and her supervisors discriminated against her because
she is a female, and they retaliated against her after she
objected to and reported acts of
discrimination. Ms. Samuels asserts Title VII claims
against the City and § 1983 claims against the City and
her supervisors, Kelvin Blevins, Will Goodman, and Thomas
to Rule 56 of the Federal Rules of Civil Procedure, the
defendants ask the Court to enter judgment in their favor on
all of Ms. Samuels's claims against them. (Doc. 22). The
defendants also ask this Court to strike all or part of five
affidavits Ms. Samuels submitted in response to their motion
for summary judgment. (Doc. 32). For the reasons explained
below, the Court denies the defendants' motion to strike,
and the Court grants in part and denies in part the
defendants' motion for summary judgment.
SUMMARY JUDGMENT STANDARD
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). To demonstrate that there is a genuine
dispute as to a material fact that precludes summary
judgment, a party opposing a motion for summary judgment must
cite “to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.”
Fed.R.Civ.P. 56(c)(1)(A). “The court need consider only
the cited materials, but it may consider other materials in
the record.” Fed.R.Civ.P. 56(c)(3). When considering a
summary judgment motion, the Court must view the evidence in
the record in the light most favorable to the non-moving
party and draw reasonable inferences in favor of the
non-moving party. White v. Beltram Edge Tool Supply,
Inc., 789 F.3d 1188, 1191 (11th Cir. 2015).
Ms. Samuels's Employment History with the City
Samuels began working for the City of Birmingham in 1994 in
the Department of Public Works. (Doc. 28-1, p. 16). In 1996
or 1997, she transferred to the City's Traffic and
Engineering Department and worked as a parking enforcement
officer for six months before becoming a laborer in the
traffic department. (Id., pp. 17-18).
her transfer, Ms. Samuels applied for several open positions
in the traffic department, including a position as a traffic
signal worker. (Doc. 28-1, p. 21). The City did not interview
Ms. Samuels for any of the open positions even though her
name appeared in certification lists of qualified applicants.
(Doc. 28-1, p. 21-22, 24). Consequently, Ms. Samuels filed a
gender discrimination charge with the Equal Employment
Opportunity Commission (“EEOC”) in 2008 or 2009.
(See id., p. 22). After Ms. Samuels filed her EEOC
charge, the City promoted her. She became a traffic signal
worker, effective January 16, 2009, and she has worked as a
traffic signal worker since that time. (Doc. 28-1, pp. 24-25,
104; Doc. 28-46).
Samuels is the only female traffic signal worker in the
traffic department. (Doc. 28-1, pp. 27-28; Doc. 28-20, pp.
7-8). As a traffic signal worker, Ms. Samuels works in the
field to install traffic signals, change bulbs in traffic
signals and crosswalks, and perform preventative maintenance
on traffic signals, among other things. (Doc. 28-36, p. 1).
Samuels's immediate supervisors are defendants Kelvin
Blevins and Thomas Stinson; defendant Will Goodman is the
chief of operations for the traffic department. (Doc. 28-1,
p. 39; Doc. 28-29, p. 7). Before he became the chief of
operations in approximately 2009, Mr. Goodman was a traffic
control technician and was one of Ms. Samuels's immediate
supervisors. (See Doc. 28-29, pp. 8-9; Doc. 28-30,
Goodman often refers to Ms. Samuels as “little
lady” when he sees her. (Doc. 28-29, p. 17). When he
was her immediate supervisor, Mr. Goodman told Ms. Samuels
that she “should work in the office somewhere and not
out in the field with all the men.” (Doc. 28-3, pp. 4,
Mr. Goodman also commented on Ms. Samuels's clothes and
told her to be careful about what she wore to work around the
men. (Doc. 28-30, pp. 50-54).
Ms. Samuels's 2014 Application and Interview for a
January or February 2014, Ms. Samuels applied for a promotion
to a traffic control technician position in the traffic
department. (Doc. 28-2, p. 2; Doc. 28-31). A traffic control
technician's duties include receiving job assignments,
working with crews in the field, installing control boxes,
and wiring signal lights and traffic control boxes. (Doc.
28-1, p. 31; Doc. 28-2, pp. 2-3; Doc. 28-35). The traffic
department has no female traffic control technicians. (Doc.
28-29, p. 7). According to Ms. Samuels, she has been
performing some of the duties of a traffic control
technician, including working inside the traffic control
boxes, since 2006. (Doc. 28-1, pp. 30-33).
Jefferson County Personnel Board certified Ms. Samuels as
qualified for the traffic control technician position and
placed her name on the list of qualified applicants. (Doc.
28-31). Mr. Goodman, Mr. Blevins, and Mr. Stinson reviewed
the certification list and selected five candidates from the
list to interview. (Doc. 28-29, p. 19). The five included Ms.
Samuels and two men who worked in the traffic department.
(Doc. 28-2, p. 11; Doc. 28-31). According to Mr. Goodman, the
department generally “interview[s] anyone that [they]
find on the list in house” because “it's
fair, and it's good for morale.” (Doc. 29-29, p.
the interviews, Mr. Goodman prepared “job rating
factors, ” or interview questions, for the traffic
control technician position, and the Personnel Board approved
the questions. (See Doc. 28-10, p. 17; Doc. 28-29,
p. 23; Doc. 28-30, p. 34; Doc. 28-38). The Personnel Board
also approved a list of expected responses to the interview
questions and grading standards for the applicants'
responses. (See Doc. 28-11, p. 18; Doc. 28-39). The
interviewers compare an applicant's responses to the
interview questions with the expected responses and then
score the applicant's responses based upon the approved
grading standards. (See Doc. 28-11, pp. 18-19; Doc.
28-29, p. 23; Doc. 28-39). There are three possible scores
for a job rating factor: (i) does not meet job requirements,
(ii) meets job requirements, or (iii) exceeds job
requirements. (See Doc. 28-39).
Goodman, Mr. Blevins, and Mr. Stinson all asked questions and
took notes during the interviews for the traffic control
technician position. (Doc. 28-2, p. 11; Doc. 28-11, pp.
12-13; Doc. 28-28, pp. 16, 24-25; Doc. 28-29, p. 24). All
three men recorded their notes on applicant rating forms that
identify the eleven job rating factors for the position.
(Doc. 28-28, pp. 23-25; see also Doc. 28-32). The
applicant rating forms have space for the interviewers to
record an applicant's responses to the interview
questions and space to score the applicant's responses.
(See Doc. 28-29, p. 23; Doc. 28-32; Doc. 28-38; Doc.
28-39; Doc. 28-40; Doc. 28- 41). Mr. Stinson destroyed his
notes at some point after the interviews. (See Doc.
28-28, pp. 17, 22). The defendants contend that Mr. Stinson
destroyed his notes because he had not taken a required class
on structured interviews and was sitting in on the interview
for training purposes. (See Doc. 28-11, p. 13; Doc.
28-28, p. 16; Doc. 28-29, pp. 24, 26).
Samuels's interview for the traffic control technician
took place on February 20, 2014, and Mr. Goodman, Mr.
Blevins, and Mr. Stinson conducted the interview. (Doc. 28-2,
pp. 3, 11; Doc. 28-32). According to Ms. Samuels, Mr.
Goodman's and Mr. Blevins's notes from the interview
do not accurately reflect her complete responses to the
questions. (Doc. 23-2, pp. 6-9). For example, Ms. Samuels
testified that Mr. Goodman and Mr. Blevins did not record her
full response to the second question or job rating factor on
her applicant rating forms. (Id.; see also
Samuels's applicant rating forms reflect that Mr. Goodman
and Mr. Blevins scored her response to the second interview
question as “does not meet the job requirements.”
(Doc. 28-32, pp. 1, 3). This was the only job rating factor
for which Ms. Samuels did not meet the job requirements for
the traffic control technician position. (Id.). If
Mr. Goodman and Mr. Blevins had recorded Ms. Samuels's
full response to the second question accurately (accepting as
true for purposes of summary judgment Ms. Samuels's
statement that they did not), then Ms. Samuels could have
scored better on the second job rating factor. (See
Doc. 28-39, p. 1; Doc. 28-2, p. 6).
Goodman and Mr. Blevins did not credit Ms. Samuels for giving
any of the expected responses to the second interview
question. (See Doc. 28-32, pp. 1, 3; Doc. 28-39, p.
1). But Ms. Samuels states that she gave a response that
included information corresponding to the expected responses.
Ms. Samuels's applicant rating forms and testimony
reflect that she gave the following information in response
to the second job rating factor or interview question:
(1) She had “knowledge of electronic circuits.”
(Doc. 28-32, p. 1).
(2) She has experience testing the 170 controllers.
(See Doc. 28-32, p. 1; see also Doc. 28-11,
p. 31; Doc. 28-12, p. 1).
(3) She has experience repairing chips inside the 170
controllers. (Doc. 28-32, pp. 1, 3).
(4) She had knowledge and experience working with meters
“to test the AC and DC voltage to make sure you're
getting the correct input coming in.” (Doc. 28-2, p.
of electronic circuits, the first response above, is one of
the expected responses to the second interview question.
(Doc. 28-39, p. 1). Ms. Samuels said she has experience
testing the 170 controllers, which requires using a meter or
oscilloscope. (See Doc. 28-12, p. 2). Experience
using an oscilloscope is an expected response to the second
question. (Doc. 28-39, p. 1). Ms. Samuels also said she has
experience repairing chips, which are the same as
microprocessors. (Doc. 28-10, p. 16; Doc. 28-11, p. 31).
Knowledge of microprocessors is an expected response to the
second question. (Doc. 28-39, p. 1). Finally, one of the
expected responses to the second question is “work
experience using analog/digital multimeters to test DC/AC
voltage, current and resistance, ” which is similar to
Ms. Samuels's fourth response above. (Doc. 28-39, p. 1).
If Mr. Goodman or Mr. Blevins gave Ms. Samuels credit for
three of the four responses described above, then Ms. Samuels
would have scored “exceeds job requirements” for
the second job rating factor. (See Doc. 28-39, p.
the interviews, Mr. Goodman, Mr. Blevins, and Mr. Stinson
discussed all of the candidates' responses and selected a
candidate for the position. (Doc. 28-11, p. 18; Doc. 28-29,
p. 24; Doc. 28-4, p. 4). Ms. Samuels did not receive the
promotion. Instead, the defendants selected Henry Ray, Jr.
for the traffic control technician position. (Doc. 28-31;
Doc. 28-42). The Personnel Board approved the promotion
decision effective March 8, 2014. (Doc. 28-42).
Ms. Samuels's 2014 EEOC Charges
25, 2014, George Singleton, the lead technician with whom Ms.
Samuels was working, told Ms. Samuels that she probably
needed to go home because she had spots on her pants due to
her menstrual cycle. (Doc. 28-2, p. 25). Ms. Samuels told Mr.
Singleton that she was going home and would not be back to
work that day. (Id.). The next day, she received a
verbal reprimand from Mr. Goodman, which was memorialized in
a writing signed by Mr. Blevins and Mr. Stinson. (Doc. 26-1,
p. 2; Doc. 28-5). Ms. Samuels received the reprimand for two
reasons: (1) for not maintaining the required minimum amount
of sick leave and (2) for leaving work without proper
management authorization. (Doc. 26-1, p. 2; Doc.
28-5). Ms. Samuels refused to sign the
reprimand because she did not believe that she violated City
policies. (Doc. 28-2, p. 27; see also Doc. 28-5).
she received the verbal reprimand, Ms. Samuels filed an EEOC
charge on June 30, 2014 alleging gender discrimination and
retaliation. (Doc. 28-18). In her EEOC charge, Ms. Samuels
asserts that she was discriminated and retaliated against
based on the City's failure to promote her to the traffic
control technician position in February 2014 and on the
City's June 26, 2014 reprimand. (Id.).
October 2014, the City had a second opening for a traffic
control technician position. (See Doc. 28-43). The
Personnel Board placed Ms. Samuels's name on the
certification list for the position based upon her
application for the first opening. (Doc. 28-43; see
also 28-31). Ms. Samuels did not receive the position.
On October 27, 2014, the defendants selected Rayburn Moore,
III for the second traffic control technician position. (Doc.
28-4; Doc. 28-47). The Personnel Board approved the
promotion decision effective November 15, 2014. (Doc. 28-47).
After the City passed over Ms. Samuels for the second traffic
control technician position, she filed an amended EEOC charge
on November 25, 2014, in which she added allegations related
to the October 2014 promotion decision. (Id.).
Ms. Samuels filed her 2014 EEOC charges, the City has had two
more openings for the traffic control technician position.
(Doc. 28-24; Doc. 28-26). Ms. Samuels did not receive either
position. The City hired two men to fill the positions.
(See id.). The Personnel Board approved Kenneth
McKenzie for one of the positions effective June 1, 2015, and
approved Jeremy Copeland for the other position effective
October 31, 2015. (Id.).
EEOC concluded its investigation into Ms. Samuels's
discrimination and retaliation charge and issued a right to
sue letter on May 20, 2015. (Doc. 25-11). This action
Allegedly Retaliatory Acts
to Ms. Samuels, the City's retaliatory actions continued
after the EEOC concluded its investigation of her charges. On
October 8, 2015, the City followed and monitored the truck
that Ms. Samuels usually was assigned to work in. (Doc. 28-2,
p. 33). Ms. Samuels did not work on October 8 because she had
called in sick that morning. (Id.). The City
employees who were working on the truck that day did not do
the work assigned to them, but instead were photographed
“loafing around” and using the truck to drive to
lunch outside the city limits. (Doc. 28-2, p. 38).
on approximately March 16, 2016, Mr. Goodman informed Mr.
Stinson that Ms. Samuels could not sit in her car in the
afternoon to wait for the end of her shift as she had been
doing. (Doc. 28-3, pp. 5-6; Doc. 28-21). Mr. Stinson sent a
text to Ms. Samuels telling her that she could not sit in her
car at the end of the day. (Doc. 28-21).
the City did not provide Ms. Samuels with enough uniforms to
wear during the week. (Doc. 28-3, p. 12). Ms. Samuels needed
four sets of uniforms for the week, but the City provided
only three. (Id.). Even though Mr. Goodman knew the
City had not given Ms. Samuels four sets of uniforms, he gave
Ms. Samuels a verbal warning for not wearing her uniform
pants to work every day. (Doc. 28-29, p. 54). Finally, Ms.
Samuels attests that “[a]fter the depositions in this
case, [Mr.] Goodman sent orders that [she is] not allowed to
work inside the boxes on the side of the road . . . .”
(Doc. 28-53, p. 2).
Motion to Strike
defendants ask the Court to strike all or part of five
affidavits that Ms. Samuels relies upon in her response to
the defendants' motion for summary judgment. (Doc.
32). Specifically, the defendants object to
statements contained in the affidavits of Ms. Samuels, Willie
Kelly, Rozell Ravell, Nathaniel Stanley, and George Singleton
on the grounds that they are inadmissible hearsay, lack
foundation, and are immaterial. (Id.). Under Rule
56(c)(2) of the Federal Rules of Civil Procedure, at the
summary judgment stage, “[a] party may object that the
material cited to support or dispute a fact cannot be
presented in a form that would be admissible in
evidence.” Fed.R.Civ.P. 56(c)(2). These objections
function like trial objections adjusted for the pretrial
setting, and “[t]he burden is on the proponent to show
that the material is admissible as presented or to explain
the admissible form that is anticipated.” Fed.R.Civ.P.
56(c)(2) advisory committee's note (2010 amendments).
56(c)(2) enables a party to submit evidence that ultimately
will be admissible at trial in an inadmissible form at the
summary judgment stage. Under the rule, “‘a
district court may consider a hearsay statement in passing on
a motion of summary judgment if the statement could be
reduced to admissible evidence at trial or reduced to
admissible form.'” Jones v. UPS Ground
Freight, 683 F.3d 1283, 1293-94 (11th Cir. 2012)
(quoting Macuba v. Deboer, 193 F.3d 1316, 1322 (11th
Cir. 1999)). A district court has broad discretion to
determine at the summary judgment stage what evidence it will
consider pursuant to Rule 56(c)(2). See Green v. City of
Northport, 2014 WL 1338106, at *1 (N.D. Ala. March 31,
defendants first object to statements in Ms. Samuels's
affidavit on the grounds that the statements are inadmissible
hearsay. (Doc. 32, pp. 4-5). Specifically, the defendants
object to Ms. Samuels's statement that co-workers left
work early for the day after telling only a
“lead” on their truck and her statement that Mr.
Goodman “sent orders that she is not allowed to work
inside the boxes on the side of the road . . .
anymore.” (Id. (citing Doc.
28-53)). Even if in their current form the
statements constitute inadmissible hearsay, see Fed.
R. Evid. 801(c), Ms. Samuels may avoid a hearsay objection at
trial by calling her co-workers and Mr. Goodman as witnesses.
same analysis applies to the statement in Mr. Kelly's
affidavit that he overheard “bits and pieces of
conversations that Mr. Goodman had, and [Mr. Goodman] did not
want any females in the [traffic] department, ” (Doc.
28-6, p. 1), and to the statements in Mr. Singleton's
affidavit that a new co-worker did not like working with Ms.
Samuels because she is female and that Mr. Singleton
overheard Mr. Ray cursing at other employees. (Doc. 28-9, p.
2). Ms. Samuels may ...