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Brown v. Utilities Board

United States District Court, S.D. Alabama, Southern Division

November 8, 2017

DELORIS N. BROWN, Plaintiff,
v.
UTILITIES BOARD, CITY OF DAPHNE, ALABAMA, Defendant.

          REPORT AND RECOMMENDATION

          WILLIAM E. CASSADY UNITED STATES MAGISTRATE JUDGE.

         This cause is before the Magistrate Judge for issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b) and S.D. Ala. Gen. L.R. 72(a)(2)(S), on Defendant Utilities Board, City of Daphne, Alabama's (“Utilities Board”) Motion for Summary Judgment, (Doc. 47), and memorandum in support, (Doc. 49), which were filed on July 28, 2017. Upon consideration of the briefs of the parties, (Docs. 49, 57, & 61), and the arguments presented during the hearing held on September 6, 2017, the Magistrate Judge recommends the Court GRANT Defendant Utilities Board's Motion for Summary Judgment, (Doc. 47).

         I. Procedural Background

         Plaintiff Brown initiated this action on February 29, 2016. (Doc. 1). Plaintiff Brown brought six counts against Defendant Utilities Board: Count One alleges Defendant Utilities Board retaliated against Plaintiff Brown, in violation of Title VII of Civil Rights Act of 1964, as amended, when it issued her a written reprimand; Count Two alleges Defendant Utilities Board retaliated against Plaintiff Brown, in violation of Title VII of the Civil Rights Act of 1964, as amended, when it terminated her employment; Count Three alleges Defendant Utilities Board retaliated against Plaintiff Brown, in violation of 42 U.S.C. § 1981, as amended and made actionable by 42 U.S.C. § 1983, when it issued her a written reprimand; Count Four alleges Defendant Utilities Board retaliated against Plaintiff Brown, in violation of 42 U.S.C. § 1981, as amended, and made actionable by 42 U.S.C. § 1983, when it terminated her employment; Count Five alleges Defendant Utilities Board racially discriminated against Plaintiff Brown, in violation of 42 U.S.C. § 1983, as amended, and made actionable by 42 U.S.C. § 1983, when it issued her a written reprimand; and Count Six alleges Defendant Utilities Board racially discriminated against Plaintiff Brown, in violation of 42 U.S.C. § 1983, as amended, and made actionable by 42 U.S.C. § 1983, when it terminated her employment. (Doc. 1, at 5-6).

         On July 28, 2017, Defendant Utilities Board filed its Motion for Summary Judgment and memorandum in support (collectively, “motion for summary judgment”). (Docs. 47 & 49). Plaintiff Deloris Brown filed her Response to Defendant's Motion for Summary Judgment (“response”), (Doc. 57), on August 24, 2017, in which she did not address Defendant Utilities Board's arguments for summary judgment on her discrimination claims and hostile work environment claim-a claim Defendant Utilities Board addressed due to her allegation of such during her deposition. (See Docs. 57 & 64). Defendant Utilities Board filed its Reply to Plaintiff's Response to Defendant's Motion for Summary Judgment (“reply”), (Doc 61), on August 31, 2017. This matter came on for oral argument before the undersigned on September 6, 2017, at which Plaintiff Brown waived her claims of discrimination and hostile work environment found in Counts Five and Six. (See Docs. 53 & 64).

         II. STANDARD OF REVIEW

         Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (“The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.”); Garczynski v. Bradshaw, 573 F.3d 1158, 1165 (11th Cir. 2009) (“[S]ummary judgment is appropriate even if ‘some alleged factual dispute' between the parties remains, so long as there is ‘no genuine issue of material fact.'”).

         The party seeking summary judgment has the initial responsibility of informing the court of the basis for the motion and of establishing, based upon the discovery instruments outlined in Rule 56(c), that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); see also Allen v. Bd. of Pub. Educ. for Bibb Cty., 495 F.3d 1306, 1313 (11th Cir. 2007) (“The moving party bears the initial burden of showing the court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial.”). Once this initial demonstration is made, the “responsibility then devolves upon the non-movant[s] to show the existence of a genuine issue . . . [of] material fact.” Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993); see also Allen, 495 F.3d at 1314 (“‘When a moving party has discharged its burden, the non-moving party must then “go beyond the pleadings, ” and by its own affidavits, or by “depositions, answers to interrogatories, and admissions on file, ” designate specific facts showing that there is a genuine issue for trial.'”); see Comer v. City of Palm Bay, Fla., 265 F.3d 1186, 1192 (11th Cir. 2001) (“Once the moving party discharges its initial burden of showing that there is an absence of evidence to support the non-moving party's case, the non-moving party must specify facts proving the existence of a genuine issue of material fact for trial confirmed by affidavits, ‘”depositions, answers to interrogatories, and admissions on file.”'”).

Forbidding reliance upon pleadings precludes a party from choos[ing] to wait until trial to develop claims or defenses relevant to the summary judgment motion. This effectuates the purpose of summary judgment which ‘is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. Thus, mere general allegations which do not reveal detailed and precise facts will not prevent the award of summary judgment upon a court's determination that no genuine issue for trial exists.

Resolution Tr. Corp. v. Dunmar Corp., 43 F.3d 587, 592 (11th Cir.) (internal citations and quotations omitted), cert. denied sub nom. Jones v. Resolution Tr. Corp., 516 U.S. 817, 116 S.Ct. 74, 133 L.Ed.2d 33 (1995); see also LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 835 (11th Cir. 1998) (“[The nonmoving party] must raise ‘significant probative evidence' that would be sufficient for a jury to find for that party.”). In other words, there is no genuine issue for trial “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party[.]” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); see Comer, 265 F.3d at 1192 (“Summary judgment is required where the non-moving party's response to a motion is merely ‘a repetition of his conclusional allegations' and is unsupported by evidence showing an issue for trial.”).

         In considering whether the defendant is entitled to summary judgment in this case, the Court has viewed the facts in the light most favorable to the plaintiff. Comer, 265 F.3d at 1192 (“We view the evidence and all factual inferences raised by it in the light most favorable to the non-moving party, and resolve all reasonable doubts about the facts in favor of the non-moving party.”).

The requirement to view the facts in the nonmoving party's favor extends only to “genuine” disputes over material facts. A genuine dispute requires more than some metaphysical doubt as to the material facts. A “mere scintilla” of evidence is insufficient; the non-moving party must produce substantial evidence in order to defeat a motion for summary judgment.

Garczynski, 573 F.3d at 1165 (internal citations omitted). In addition, “[t]here is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment.” Resolution Tr. Corp., 43 F.3d at 599. Accordingly, the Court limits its review to those arguments expressly advanced by the parties.

         III. Factual Background

         A. Utilities Board of the City of Daphne, Alabama

         Defendant Utilities Board is a public entity providing gas, water and sewer services to its customers. (Doc. 48-1, at 1). During 2013 and 2014, Defendant Utilities Board had a grievance procedure for employees to follow in the event that a disagreement arose concerning discipline or termination. (Doc. 48-1, at 1-2). Pursuant to the policy, if a disagreement is not resolved by direct discussion with the employee's supervisor, the employee should file a written grievance with the Human Resources Manager, who may proceed to conduct an investigation and find possible remedies. (Doc. 48-1, at 1-2). The Human Resources Manager is to attempt to respond and/or resolve the situation within fourteen (14) days. (Doc. 48-1, at 1). The Human Resources Manager shall advise the employee of his/her decision. (Doc. 48-1, at 1-2). If the dispute concerns the Human Resources Manager, a written grievance should be filed with the General Manager. (Doc. 48-1, at 2). Defendant Utilities Board's employee handbook states “circumstances may arise that make it appropriate to vary from or change the policies, procedures, work rules and benefits described herein. Therefore, we reserve the right to necessary changes, with or without notice.” (Doc. 62, at 31). The acknowledgement page, also, states Defendant Utilities Board retains the right to change policies as it deems advisable. (Doc. 62, at 32).

         B. Plaintiff Brown's Employment with Defendant Utilities Board

         In 1995, Plaintiff Brown began her employment with Defendant Utilities Board. (Doc. 48-1, at 31). Plaintiff Brown was initially employed as the administrative assistant to the director and held several positions before becoming human resources manager. (Doc. 48-1, at 34). As human resources manager, one of Plaintiff Brown's duties was to develop and implement policies and procedures that complied with state and federal law. (Doc. 48-1, at 34).

         C. ...


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