United States District Court, N.D. Alabama, Southern Division
K. KALLON, UNITED STATES DISTRICT JUDGE.
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.
LEGAL STANDARD FOR SUMMARY JUDGMENT
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).
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)).
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. Docs. 1 at 2; 27-1 at 19-20.
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.
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.
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.
filed a third IAD complaint against Ephraim on March 9, 2015,
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.
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.
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.
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.
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 ...