United States District Court, N.D. Alabama, Southern Division
G. CORNELIUS U.S. MAGISTRATE JUDGE
court has before it the February 17, 2017 motion for summary
judgment filed by Defendant The University of Alabama Board
of Trustees (“UA”). (Doc. 25). Pursuant to the
court's initial order (Doc. 14) and March 9, 2017
extension (Doc. 32), the motion was under submission as of
March 31, 2017. After consideration of the briefs and
evidence, the motion is due to be granted for the following
STATEMENT OF FACTS
Jason Hill began his employment with Defendant on March 7,
2011. (Hill Dep. at 31). Hill worked at UA's Working On
Womanhood Program (“WOW”) which operates at the
Girls Intensive Education and Treatment Facility. (Tippey
Aff. ¶ 5). The facility houses female juvenile offenders
(“the students”) with behavioral and mental
health needs who have been adjudicated delinquent in the
juvenile justice system and are committed to the custody of
the Alabama Department of Youth Services. (Id.
¶ 7). The students often have a history of trauma,
abuse, and neglect. (Hill Dep. at 36; Tippey Dep. at 19).
operates a residential program providing students with
gender-specific, outcome-driven interventions to help build
coping skills and promote self-control of their emotions and
behavior. (Tippey Aff. ¶ 8). WOW and its employees must
follow certain guidelines and policies required by the
Alabama Department of Youth Services and the American
Corrections Association, including maintenance of a specific
staff to student ratio, male to female ratio, and facility
security. (Id. ¶ 9). WOW is also governed by
the Prison Rape Elimination Act (PREA) which precludes males
from entering the bedrooms of female students without
accompaniment of a female staff member. (Id. ¶
the relevant time, Hill worked as a direct care safety
worker. (Hill Dep. at 32-33). Hill's duties were to
operate the facility and to supervise and care for its female
students. (Id. at 33). Hill began by working the
first shift from 6:45 a.m. until 3:00 p.m. but in the summer
of 2013, he worked the third shift, from 10:45 p.m. until
7:00 a.m. (Tippey Aff. ¶¶ 15, 17). Shifts are
scheduled with a fifteen minute overlap to provide incoming
employees time to communicate with outgoing employees on
matters arising during the previous shift. (Id.
¶¶18-19). WOW also maintains a log book where
employees record a general summary of the shift and highlight
any significant incidents or issues. (Id.
directly reported to the direct care supervisor for his
shift. (Hill Dep. at 16). The direct care supervisors
reported to the care manager, who during all relevant times
was Shaun Patterson. (Id.; Patterson Dep. at 10).
The care manager reports to the program director, who was Dr.
Jacalyn Tippey during all relevant times. (Tippey Aff.
¶ 16; Tippey Dep. at 11). The program director is the
highest ranking employee at the facility. (Tippey Dep. at 10,
14). The program director reports to the executive director
of the Youth Services Institute, a position held by Jill Beck
since February 2014. (Tippey Aff. ¶ 16; Beck Dep. at 7,
utilizes progressive discipline. In the absence of an act
warranting immediate termination, discipline generally begins
at a lower level and increases with each additional
disciplinary counseling. (Tippey Dep. at 31-34). Although
counselings never roll off an employee's record, after a
certain time has passed, disciplinary issues are generally
discounted as they age. (Id.; Beck Dep. at 118).
Hill's employment, he received eleven formal and/or
information disciplinary counselings, detailed as follows:
Time and attendance.
Time and attendance. Hill called in or was tardy 49
times in a three month period.
Failure to follow a supervisor's instructions
and disrespectful communications.
Report made by an outside dental office employee of
unprofessional communications in front of a
student; disrespectful communications to a
supervisor; specifically, calling Patterson a
Safety violation - knife was used in a student
Inattentive to duty and interfering with the work
assignments of others.
Walking off the job without approval or notice.
Time and Attendance.
Time and Attendance.
Time and Attendance.
Failure to secure facility doors and being
inattentive to duty; three other females were also
(Beck Aff. ¶ 6; Exhs. A-K to Beck Aff.). Other than his
termination, none of Hill's disciplinary counselings
resulted in a loss of pay, demotion, suspension, or change of
job duties. (Beck Aff. ¶ 6). Although Hill spends much
time in his brief outlining the events surrounding the April
11, 2013 counseling for a safety violation and the November
25, 2014 counseling for failure to secure the doors and being
inattentive, none of that information is relevant to the
claims before the court. (See infra at III.A.1.).
The court limits its recitation of the facts to the events
surrounding Hill's termination. (Id.).
January 6, 2015 Incident
January 6, 2015, a student, T.B., did not attend school
because she displayed behavior characterized in various notes
as aggressive, threatening, and volatile. (Hill Dep. at 53;
Tippey Dep. at 71; Anders Dep. at 41-51). At some point
during the day, Dr. Tippey made an agreement with T.B. that
if her behavior improved, she could sleep in her own room
that night, rather than a safe room.(Tippey Dep. at 84). Before
Dr. Tippey left the facility for the night, T.B.'s
behavior improved and stabilized. (Id. at 84-85).
Tippey spoke with Octavia Anders, a member of the second
shift, and informed her T.B. had been upset earlier that day
but “turned her behavior around, was stable, and
therefore was allowed to sleep in her room that night”
with Anders on sentry duty during the second shift. (Tippey Dep. at
84-85). Additionally, Dr. Tippey left an entry in the log
book requiring T.B. to be monitored by sentry duty because of
her earlier behavior. (Hill Dep. at 54-55; Tippey Dep. at
went to her bedroom in the C-pod for the night at around 8:30
p.m. (Anders Dep. at 47). As instructed, Anders performed
sentry duty outside T.B.'s door from the majority of the
time between 8:30 p.m. and 11:00 p.m., when the second shift
ended. (Id.). Hill arrived at the facility that
night at 10:43 p.m. for third shift. (Hill Dep. at 52). Other
members of the third shift included two females, Giselle
Royal and Jackie May, and two males, Michael Jelks and Jace
Peaden. (Hill Dep. at 50-51). Hill reviewed the log book when
he arrived and read Dr. Tippey's entry relating to T.B.
(Id. at 52-55).
second and third shifts conferred during the shift change,
according to Hill, Anders told the third shift employees T.B.
had expressed she wanted to kill herself, she wanted to die,
and she was going to harm herself. (Id. at 60-62).
Another second shift employee told Hill the control room
attempted to call Dr. Tippey but was unsuccessful.
(Id. at 62-64). Additionally, it was noted there
were only two female employees on third shift, they would be
needed in other areas during the shift, and it would not be
appropriate for a male employee to be alone on sentry duty.
(Peaden Decl. ¶ 9). There was also some concern about
the lack of visibility into T.B.'s bedroom at night.
(Exh. D to Tippey Aff.). As such, according to Hill, the
group decided the safest course of action was to
move T.B. from her room to the safe room where she could be
monitored on camera to prevent any incident during the shift.
(Hill Dep. at 68, 70-72, 105-06, 286-88; Jelks Dep. at
was on sentry duty by T.B.'s door when Hill, Peaden, and
Jelks entered the C-pod at 10:47 p.m., four minutes after
Hill arrived at the facility. (Hill Dep. at 109; Tippey Dep.
at 122-24; Pl. Exh. 23). Jelks carried regular linens for
T.B. to make her as comfortable as possible and walked toward
the safe room. (Jelks Dep. at 49-50; Pl. Exh. 23). Peaden
walked to the safe room and removed the safety blanket.
(Jelks Dep. at 70; Pl. Exh. 23). Anders asked whether the men
had received permission from Dr. Tippey to move T.B., and
Jelks replied “no.” (Jelks Dep. at 48, 49, 78;
Hill Dep. at 109-10; Pl. Exh. 23). Geraldine Smith, a second
shift employee, also asked whether anyone had permission to
move T.B. (Hill Dep. at 113-14; Pl. Exh. 23).
and Hill approached T.B.'s door, and Anders called out
“Suite 9” to tell the control room to open the
door to T.B.'s room. (Jelks Dep. at 71-72; Peaden Decl.
¶ 7; Pl. Exh. 23). Hill then waved his hand above his
head to signal to the control room to open the door. (Pl.
Exh. 23; Jelks Dep. at 72-73). Anders again called out
“Suite 9” and “lights on” as the door
to T.B.'s room was opened. (Jelks Dep. at 73-74; Peaden
Decl. ¶¶ 7, 10; Pl. Exh. 23). Peaden and Hill
entered T.B.'s room, and the men escorted her from her
room to the safe room. (Hill Dep. at 110). No females entered
T.B.'s room, although there were three females in the
common area of the C-pod when T.B. was moved. (Jelks Dep. at
71-80; Pl. Exh. 23). Jackie May documented the move in the
log book as follows: “Upon arrival all girls were
asleep in assign [sic] room. T.B. was place[d] in SR2 for
observation due to sentry duty. No problems noted at this
time.” (Pl. Exh. 22).
Anders' shift ended and she left the facility, at 12:07
a.m., she sent an email to Dr. Tippey notifying her T.B. was
moved from her room to the safe room. (Tippey Dep. at 106-08;
Pl. Exh. 24). The relevant portion of the email states:
Tonight (Jan. 6th) when 3rd shift came on it was told to them
that T.B. was on sentry duty and she was sleeping in rm 9.
Shortly after they came over with linen and stated that they
were putting her in SR2. I informed them that per you (Dr.
Tippey) she was to sleep in rm 9. They stated that they were
moving her to SR2. They politely woke her up and put her in
SR2. I informed them that the toilet is leaking in SR2, not
to turn the water on and if she needs to go she needs to come
out. I exited the pod.
The Investigation and Plaintiff's Termination
arrival at the facility on January 7, 2015, Dr. Tippey met
with T.B. (Tippey Aff. ¶ 65; Tippey Dep. at 109, 113).
According to Dr. Tippey, T.B. was confused and distressed.
(Tippey Dep. at 113). T.B. specifically questioned why she
was moved from her room when she complied with her part of
the deal and improved her behavior. (Id. at 109,
113). Dr. Tippey apologized for the miscommunication.
(Id. at 113).
Tippey then initiated an investigation into the incident.
(Tippey Aff. ¶ 39). First, she reviewed the video
surveillance from the C-pod. (Id. ¶40).
She next requested written incident reports from Hill, Jelks,
Peaden, Smith, and Jykia Johnson, the individuals shown on
the video. (Id. ¶ 48; Exhs. C-G to Tippey
Aff.). She did not request anything from Anders because she
had her email detailing her recollection of the events.
(Id. ¶ 49). The written accounts were
consistent and indicated to Dr. Tippey the following: (1)
T.B. was sleeping; (2) Hill, Jelks, and Peaden decided to
move her; (3) Anders and Geraldine Smith questioned whether
Dr. Tippey gave authority for the move; and (4) Hill and
Peaden entered T.B.'s room, awakened her, and moved her
to the safe room. (Id. ¶ 50; Exhs. C-G to
Tippey Aff.). No one contended T.B. was moved because she
exhibited behavioral concerns. (Tippey Aff. ¶ 55).
Tippey, along with care manager Shaun Patterson and direct
care supervisor for the night shift, Mandi Ethridge,
conducted interviews with Hill, Jelks, Peaden, Anders, and
Smith to further understand what occurred. (Tippey Aff.
¶ 51; Exh. H to Tippey Aff.). The interviews confirmed
the facts as seen in the surveillance video and contained in
the written incident reports, including that Jelks, Peaden,
and Hill decided to move T.B. (Tippey Aff. ¶ 52). No one
reported that the move was discussed with Anders or that
Anders (or any other female employee) agreed that T.B. should
be moved. (Id. ¶ 57).
Tippey was concerned about the results of her investigation
for three main reasons. First, the trust she sought to build
with T.B., which directly affects her ability to provide
effective treatment, was violated. (Id. ¶¶
38, 58; Tippey Dep. at 109, 110-13). Second, two males should
not have entered a female student's room but should have
requested a female enter with them to avoid a PREA issue.
(Tippey Aff. ¶ 59). Finally, T.B. was asleep when the
men entered. (Id. at 60). T.B. had been sexually
assaulted by men in the past, and to be awakened by two men
in her room created a “risk of frightening her,
re-victimizing her, and could have caused her to have a
behavioral or violent outburst.” (Id.)
Tippey met with Executive Director of the Youth Services
Institute Jill Beck and Patterson to discuss the incident and
the results of her investigation. (Tippey Aff. ¶ 61).
Based on the video, written reports, and interviews, Beck and
Dr. Tippey concluded Jelks, Peaden, and Hill were
insubordinate to Dr. Tippey's orders, showed poor
judgment in not consulting with the employee on sentry duty
as to T.B.'s current mental state and Dr. Tippey's
instructions, and, as males in a non-emergency situation,
chose to enter the room of a sleeping female student. (Tippey
Dep. at 163, 214, 216-17; Dep. of Beck at 125-26; Beck Aff.
¶20). Dr. Tippey and Beck determined the three men who
actively played a role in the relocation of T.B. from her
room to the safe room should be disciplined for the incident.
(Beck Aff. ¶ 21; Tippey ...