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Frazier v. City of Mobile

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

February 1, 2018

KATRINA FRAZIER, Plaintiff,
v.
CITY OF MOBILE, ALABAMA; MOBILE COUNTY PERSONNEL BOARD, Defendants.

          ORDER

          KRISTI K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE.

         Katrina 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 GRANTED.

         I. Introduction

         The 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.[1] (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).

         Both 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).

         II. Findings of Fact[2]

         The 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 Coordinator).

         In 2014, Frazier encountered serious headwinds in her effort to professionally advance.

• 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.

         MCPB 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.

         The 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. (Id.).

         A. Superintendent of Recreation

         Sherryll 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).

         Pursuant 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).

         B. Director of Parks and Recreation

         The 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).[3] 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).

         C. Recreation Program Supervisor - Connie Hudson Senior Center

         The 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.[4] (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.[5]) Otto became aware of Frazier's EEOC Charge at least by October 14, 2014. (Doc. 50-6 at 9).

         Shine 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 ¶ 46).

         D. Superintendent of Recreation - Second Vacancy[6]

         The 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 job[]”)).

         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.

         E. Director of Parks and Recreation - Second Vacancy

         The 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).

         III. Conclusions of Law

         A. Summary Judgment Standard of Review

         “The 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. The court need consider only the cited materials, but it may consider other ...

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