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Johnson v. City of Birmingham

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

December 15, 2017




         Terrie Johnson alleges that a fellow Birmingham Police Department (“BPD”) officer subjected her to a sexually hostile work environment. Doc. 1. She filed this lawsuit, alleging that her former employer, the City of Birmingham, knew or should have known of the abuse and failed to take prompt remedial action and then retaliated against her for complaining of the alleged harassment. Doc. 1. The City filed a motion for summary judgment, which is fully briefed and ripe for consideration. Docs. 26; 27; 29. After reading the briefs, viewing the evidence, and considering the relevant law, the court grants the motion.


         Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper “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. “Rule 56[] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (alteration in original). The moving party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party, who is required to “go beyond the pleadings” to establish that there is a “genuine issue for trial.” Id. at 324 (internal quotations omitted). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         At summary judgment, the court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 255. Any factual disputes will be resolved in the non-moving party's favor when sufficient competent evidence supports the non-moving party's version of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir. 2002). However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere ‘scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252)).


         Between 1994 and 2015, Johnson worked as a police officer for the BPD's West Precinct, where she alleges a fellow officer sexually harassed her. Docs. 1 at 2; 27 at 3; 29 at 3. Specifically, she alleges that Officer Isaac Ephraim waited for her by her car after work, repeatedly asked her out on dates, which she rebuffed, and, in response, began a campaign of harassment against her.[1] Docs. 1 at 2; 27-1 at 19-20.

         Johnson's first allegation of misconduct by Ephraim is that, “when sitting next to [her] at roll call, Ephraim put his hand on her thigh, ” and, after she removed his hand, “he responded that he knew she liked it and put his hand on her thigh again.” Doc. 1 at 2. Next, on September 5, 2014, while Johnson was working at a computer at the station, Ephraim purportedly walked over and “swung his hand towards [her] and came close to hitting [her].” Docs. 27-1 at 6; 29 at 4. Ephraim disputes this, alleging that, because Johnson had used the computer for almost two hours, he said to her “girl, get off the computer and let someone else on, ” which made Johnson irate. Doc. 27-3 at 2. Either way, Johnson and Ephraim began loudly arguing and using profanity, causing a disruption at the precinct. Docs. 27 at 4; 27-1 at 6; 27-3 at 2; 29 at 4. Ephraim later admitted that during the confrontation he told Johnson that she was “talking like a man” and that “shit happens when you talk like a man.” Doc. 27-3 at 2. Johnson filed a complaint with BPD's Internal Affairs Department (“IAD”) against Ephraim a few days later, in which she complained that Ephraim swung his fist towards her face as if he was about to strike her. Docs. 27 at 4; 27-1 at 6; 27-3 at 2; 29 at 4.

         On November 14, 2015, Johnson filed a second IAD complaint against Ephraim, citing two separate incidents. Doc. 27 at 4-5. First, she alleged that Ephraim drove past her one day and said “nice car, ” which she interpreted as a retaliatory act in response to her first IAD complaint. Doc. 27-1 at 6. Johnson also complained that Ephraim had appeared at one of her assigned calls, even though the dispatcher did not send him there, and began “blowing towards her thigh.” Docs. 1 at 3; 27-1 at 6. When the BPD subsequently investigated Johnson's complaint, Ephraim claimed that he answered the call to provide back up for Johnson because the dispatcher stated that the “subjects had guns and knives and were fighting in the street.” Doc. 27-3 at 2. Ephraim added that he blew on Johnson's legs to scare off a bee that was hovering near her. Docs. 1 at 3; 27 at 4-5; 27-3 at 4.

         As further examples of alleged harassment, Johnson alleges that, around this same time, she overheard Ephraim referring to female officers as “bitches.” Doc. 27-1 at 5-6. On another occasion, Ephraim purportedly explained to Johnson that the “come two times” phrase written on his vehicle's tag referred to his ability to pleasure women and that he could do the same for her. Doc. 27-1 at 14.

         Johnson filed a third IAD complaint against Ephraim on March 9, 2015, [2] in which she alleged that Ephraim forcefully and intentionally “bumped into her, ” knocking her off balance, and that he had done the same on two prior occasions. Docs. 27 at 5; 29 at 4. She testified in her deposition in this case that this incident angered her to the point that she telephoned the IAD agent in charge of investigating her complaints, Sergeant David Rockett, to complain about Ephraim. Doc. 27-1 at 11. However, Rockett “wasn't aware that [the prior complaints] had been assigned to [him], ” and, as a result, “the file was inadvertently placed in a file room on the shelf with closed cases.” Doc. 27-3 at 3. At some point after the third IAD complaint, the BPD began investigating Johnson's complaints and transferred Ephraim to another precinct. Doc. 27-1 at 16, 19.

         On July 1, 2015, the BPD served Johnson with a Notice of Determination Hearing, informing her that the BPD was considering disciplining her for the argument that occurred on September 5, 2014. Id. at 42-43. After granting Johnson's request for a continuance, the BPD served Johnson with a second Notice of Determination Hearing a month later, which included a new allegation that “on an undisclosed date two or more years ago, [Johnson] commented to Officer Ephraim about his penis and tried to reach into his pants.” Id. at 43. Johnson requested another continuance. Id.

         BPD finally held the hearing on September 1, 2015, during which Chief A.C. Roper heard testimony from various officers. Id. at 40, 45. Johnson chose not to attend the hearing and submitted a written statement instead, in which she denied the allegations against her and asserted her belief that the BPD convened the hearing to retaliate against her for complaining of Ephraim's alleged harassment. Id. at 42-43. After hearing the evidence, Chief Roper gave Johnson and Ephraim a “letter of reprimand” and required that they attend remedial training on the Workplace Harassment Policy, as both admitted to using profanity and causing a disruption at work. Id. at 45; doc. 27-3 at 3. Chief Roper also suspended Johnson for three days because of the allegation that she commented on and tried to grab Ephraim's penis. Docs. 27-1 at 45; 27-3 at 3. Chief Roper based this decision on the statements of two witnesses who each corroborated Ephraim's account: Officer Erika Lofton, Ephraim's partner, and Sergeant Pier Walker. Doc. 27-3 at 2-4.

         Johnson appealed Chief Roper's decision to the City's Human Resources Department. Doc. 27-1 at 39. Shortly after filing her appeal, however, Johnson retired from the BPD and accepted another job. Docs. 27 at 3; 29 at 1. As a result, Johnson never actually served the suspension. Docs. 27 at 6; 27-1 at 67.

         Despite Johnson's retirement, the City's Director of Human Resources, Peggy Washington-Polk, heard the appeal and ultimately recommended that the mayor uphold the suspension. Doc. 27-3 at 1-4. Director Washington-Polk, like Chief Roper, was persuaded by the testimony of Officer Lofton and Sergeant Walker. Id. at 3. At the appeal hearing, Officer Lofton testified that she saw Johnson “reaching for Ephraim's zipper” and saying “come on let's go” and that she failed to report the incident because she “didn't want to get involved” and “didn't want to get [Johnson] in trouble.” Id. at 2. Sergeant Walker similarly testified that she heard Johnson say to Ephraim “I heard what you working with” and then reach for his pants. Id. at 2-3. Sergeant Walker claims she told Johnson and Ephraim to “get out of here with that, ” but did not discipline them ...

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