United States District Court, S.D. Alabama, Southern Division
K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE.
Frazier is a longtime City of Mobile employee who sued the
City for race and gender discrimination and retaliation after
not receiving a number of promotions. (Doc. 1). Before the
Court are the Defendants' Motions for Summary Judgment
(Docs. 39 & 42), Plaintiff's Response (Doc. 49), and
the Defendant's Reply (Doc. 52) as well as accompanying
statements of fact and evidentiary material. For the
following reasons, Defendants' Motions are
plaintiff, Katrina Frazier, is an African American female
employed by the City of Mobile, Alabama. Frazier sued the
defendants, City of Mobile and Mobile County Personnel Board
[hereinafter “the City”], in August 2016. She
alleges two counts against the City. Both counts are brought
pursuant to Title VII of the Civil Rights Act of 1964 and 42
U.S.C. § 1981. (Doc. 1 at ¶ 1). Count I, a gender
and retaliation claim, alleges the City unlawfully
discriminated against Frazier based upon her gender in not
promoting her to Superintendent of Recreation in July 2014
and Director of Parks and Recreation in August
2014. (Doc. 1 at ¶ 56). In Count I Frazier
also alleged she was not promoted three times in retaliation
for her engagement in a protected activity: in late 2014, for
the position of Recreation Program Supervisor and for the
second vacancies of Superintendent of Recreation and Director
of Parks and Recreation in 2015 and 2016, respectively. (Doc.
1 at ¶ 61). Count II alleges the City unlawfully
discriminated against Frazier based on her race for failure
to promote her to Recreation Program Supervisor. (Doc. 1 at
¶ 74). Frazier also repeats her assertion that she was
not promoted in retaliation for her protected activity. (Doc.
1 at ¶ 78).
Defendants filed a Motion for Summary Judgment. (Docs. 39
& 42). The Mobile County Personnel Board
(“MCPB”) adopted the City's Brief in support
of its own motion. (Doc. 42).
Findings of Fact
City has employed Frazier in some capacity for more than 25
years. (Doc. 48 at 2). She began in 1991 as an Office
Assistant, and as of May 2017, she had been promoted to
Recreation Program Supervisor. (Doc. 48 at 2). While
employed, Frazier received several higher education degrees:
an associate's degree in 1994/1995, a bachelor's
degree in 2001, and a master's degree in Public
Administration/Public Management in 2009. (Doc. 48 at 1). Her
career, prior to 2014, entailed several lateral transfers
(i.e., from Office Assistant in Architectural to Parks and
Recreation) and promotions (i.e., from Office Assistant to
2014, Frazier encountered serious headwinds in her effort to
• In July 2014, the City selected another candidate over
Frazier for the position of Superintendent of Recreation.
• In August 2014, the City passed over Frazier in
filling the position of Director of Parks and Recreation.
• In December 2014, the City did not select Frazier for
the position of Recreation Program Supervisor at the Connie
Hudson Senior Center.
• In 2015, the City did not fill an open Superintendent
of Recreation to which Frazier applied and interviewed.
Frazier applied for this position twice (once in July 2014
and again in late 2015 when it became open again) and has
interviewed for it three times.
• In 2016, the City did not fill the Director of Parks
and Recreation position when it became available again.
screened and then ranked applicants when a merit position was
posted. (Doc. 50-9 at 3 & 5). Those included on the
Employment Register and passed along to the City were
qualified for the position. (Doc. 50-9 at 6). Frazier was
determined to be qualified for each position to which she
applied. Frazier contends each denial involved some
manifestation of unlawful discrimination, including gender,
race, and retaliation. As a result of these contentions,
Frazier filed two EEOC Charges of Discrimination.
structure of the City's workplace is as follows: the
Executive Director of Public Works supervises the Parks and
Recreation Director. (Doc. 40 at ¶ 8). Two
superintendents, the Recreation Superintendent and the Parks
Superintendent, report to the Parks and Recreation Director.
(Id.). The Recreation Superintendent supervises five
department heads. At the time Frazier applied for each
promotion, she, in her position as Community Activities
Coordinator, reported to one of the five department heads.
Superintendent of Recreation
White served as Recreation Superintendent until 2012, when
the City promoted her to Director of Parks and Recreation.
(Doc. 40 at ¶ 9). Her promotion left the Recreation
Superintendent position vacant. (Doc. 40 at ¶ 9). Due to
a hiring freeze, the City denied White's request to hire
a permanent replacement, but instead granted her authority to
select an interim. (Doc. 40 at ¶ 9). White undertook the
search to locate a suitable replacement, and ultimately met
with three City employees, including Frazier, who indicated
their interest. (Doc. 40 at ¶ 10-11). White selected
Julious Shine, an African American male, for the interim
position. (Doc. 40 at ¶ 11; Doc 43-27 at 17).
to MCPB Rule 17, temporary duty assignments, like the one in
which Shine was employed, shall not exceed six months. (Doc.
41-8 at 2). By the time White brought this rule to the
attention of William Harkins, the Director of Public Works,
Shine's employment in the interim capacity exceeded a
year. (Doc. 41-9). White sent a letter to Harkins in which
White requested Harkins post the position in order to select
a person on a permanent basis. (Doc. 41-9). The City posted
the job on June 3, 2014. (Doc. 41-1 at 1). The posting
limited applicants to “regular employees of the City of
Mobile Parks and Recreation Department” who had a
bachelor's degree and a minimum of three years
administrative experiences in organized recreational
activities, or a combination of
education and experience. (Doc. 40 ¶ 15; Doc. 41-1 at
2). Shine has an Associate's Degree and has completed
five years at a university, but he never received a
bachelor's degree. (Doc. 43-26 at 2). He began working
for the City of Mobile in 1992, and served as Athletic
Program Coordinator since 2008. (Doc. 41-11). At the time of
his permanent selection, his interim service exceeded one
year. (Doc. 41-9).
Director of Parks and Recreation
City posted the Director of Parks and Recreation position on
June 24, 2014. (Doc. 12 at ¶ 25 (citing Doc. 1
at ¶ 24)). As a result of the posting, the MCPB
certified three names for consideration, Frazier among them.
(Doc. 12 at ¶ 25). Harkins named Dan Otto, a Caucasian
male, as the interim director, effective July 1, 2014. (Doc
48 at 14). Otto had worked for the City for more than
24 years. (Doc. 40 at ¶ 4). He holds a Bachelor's
Degree in Ornamental Horticulture. Prior to his promotion to
the interim position, he served as Parks Superintendent.
(Doc. 40 at ¶ 4). Harkins then interviewed three
candidates for the permanent position and passed over Frazier
again, selecting Otto instead. (Doc. 40 at 25-7). Otto was
named Director (without the interim designation) less than
two months after his installment as interim. (Doc. 48 at 16).
Recreation Program Supervisor - Connie Hudson Senior
City posted the open Recreation Program Supervisor position
at the Connie Hudson Senior Center on June 30, 2014, six days
after posting the Director of Parks and Recreation position.
(Doc. 40 at ¶ 33). Although the applicant pool
originally consisted of only people within the division,
Mobile Mayor Sandy Stimpson's then-Chief of Staff, Colby
Cooper, directed the position be listed as “open
competitive” after conversations with Otto and
Harkins. (Doc. 40 at ¶ 33). Frazier applied
for this position. (Doc. 40 at ¶ 34; Doc. 43-5). The
Employment Register for this list included ten names, Frazier
among them. From this list, Shine and Otto conducted the
first-round interviews after the finalization of the
Employment Register on November 18, 2014. (Doc. 40 at ¶
35). (Frazier filed an EEOC charge on August 15, 2014, in
which she alleged sex discrimination related to her being
denied promotions to Recreation Superintendent and Director
of Parks and Recreation.) Otto became aware of Frazier's
EEOC Charge at least by October 14, 2014. (Doc. 50-6 at 9).
and Otto whittled the candidates down in order to provide
Harkins with three interviewees. (Doc. 40 at ¶ 35).
Frazier did not advance to the final interview with Harkins.
(Doc. 48 at 18). The three who did advance included Ashley
Flowers, Therese Fulford, and LaNisha Penn. (Doc. 48 at 18).
Penn is an African American female who, at the time of the
interview, served as the interim director. (Doc. 40 at 38).
Harkins ultimately selected Flowers, a Caucasian woman. (Doc.
40 at ¶ 45). Shortly thereafter, on December 24, 2014,
Frazier filed a second Charge of Discrimination with the
EEOC, this time alleging the City unlawfully discriminated
against her on the basis of race and in retaliation for her
engagement in a protected activity by denying her the
Recreation Program Supervisor promotion. (Doc. 40 at ¶
Superintendent of Recreation - Second
City demoted Shine from Superintendent of Recreation in April
2015. (Doc. 48 at 25). To date, the position has not been
filled. However, Frazier has applied for the position twice
and has interviewed thrice. (Doc. 48 at 25). Otto interviewed
Frazier on November 19, 2015. (Doc. 48 at 26). That same day,
Otto communicated with the City's legal counsel regarding
Frazier's ongoing EEOC charge. (Doc. 50-6 at 52). In
interview notes Otto forwarded to Human Resources he wrote,
among other characteristics, that Frazier had
“questionable loyalty.” (Doc. 50-6 at 76). MCPB
issued yet another list of potential candidates in order to
permit Otto to interview two additional candidates. (Doc.
50-6 at 61). MCPB issued this list on February 22, 2016, and
it included Frazier. (Doc. 50-6 at 65). Ultimately, Otto
elected not to fill the position on even an interim basis,
reasoning that his dissatisfaction with the applicant pool
precluded such a move. (Doc. 50-6 at 37 (Otto explained that
when you “do an interim” you convey to the
selected person that “they're the one for the
City removed Otto from his position as Director of Parks and
Recreation in February 2016. (Doc. 50-6 at 77). Replacing
Otto was Matthew Capps. When Capps was elevated to Otto's
position, Capps was informed of Frazier's discrimination
allegations. (Doc. 50-7 at 10). Soon after his promotion,
Capps opened the Recreation Superintendent job for
applicants. Frazier again interviewed for the job in March
but again was not selected. (Doc. 50-7 at 9). In fact, Capps
did not select anyone for the position, and it remained open.
Frazier filed this case in August 2016 and claims that she
was not selected for the Superintendent position in
retaliation for her previous EEOC Charges.
Director of Parks and Recreation - Second Vacancy
Director of Parks and Recreation position became available
once again in early 2016, when Otto returned to his position
as Parks Superintendent. (Doc. 50-6 at 44-45). Since then,
Matthew Capps has served in the Senior Director's
position, a position that includes all of Otto's previous
duties. (Doc. 50-6 at 46; Doc. 48 at 29). Capps'
promotion, according to Frazier, ran afoul of MCPB rules
requiring the position be open. Had the position been posted,
Frazier contends she would have applied. Frazier also
contends that Capps' educational background did not
comport with the requirements for the job. (Doc. 48 at 30).
As of October 2, 2017, Frazier states the Director of Parks
and Recreation remained officially unfilled and not open for
applications. (Doc. 48 at 30).
Conclusions of Law
Summary Judgment Standard of Review
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). Rule 56(c) provides as follows:
(1) Supporting Factual Positions. A
party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing 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; or
(B) showing that the materials cited do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact.
(2) Objection That a Fact Is Not Supported by
Admissible Evidence. 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.
(3) Materials Not Cited.
need consider only the cited materials, but it may consider