United States District Court, N.D. Alabama, Southern Division
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE
Dona Herring Smith brings this case pro se against
her former supervisor and employer, defendants Deborah Fout
and the Library Board of the City of Homewood. (Doc.
Ms. Smith brings claims against the defendants for
retaliation under Title VII, disability discrimination under
the Americans with Disabilities Act, age discrimination under
the Age Discrimination in Employment Act, and denial of her
rights under the Family Medical Leave Act. (Doc. 1). Ms.
Smith also asserts a claim for defamation against Ms. Fout.
(Doc. 1, p. 10). The defendants ask the Court to enter
summary judgment on all of Ms. Smith's claims. (Doc. 21).
The defendants also ask the Court to strike Ms. Smith's
response to their motion for summary judgment. (Doc.
For the reasons stated below, the Court grants the
defendants' motion for summary judgment.
Herring Smith began working for the Homewood Public Library
as a library assistant in 1989. (Doc. 1, pp 3, 15; Doc. 34,
p. 1). By the time of her termination in 2014, Ms. Smith was
the head of the library's children's department, a
position she had held since 2001. (Doc. 1, ¶ 12). Ms.
Smith is over 40 years of age and has “a debilitating
physical disorder” that manifests itself as
“flare-up[s], ” which make it difficult for her
to walk. (Doc. 1, ¶¶ 11, 26, 28; Doc. 22, p. 18).
Ms. Smith has been receiving treatment for this condition
since 2013, and Ms. Fout was aware of the condition. (Doc. 1,
¶¶ 5, 26, 28). Deborah Fout began serving as
Homewood Public Library's director in 2009, and as
director, she supervised Ms. Smith until Ms. Smith's
termination. (Doc. 22, p. 6).
Smith filed an EEOC charge of discrimination against Homewood
Public Library in June 2012 while she still was a library
employee. (Doc. 1, p. 15; Doc. 22, p. 52). Ms. Smith asserted
that the library denied her a promotion based on her age and
gave the position to a younger employee. (Doc. 1, p. 15; Doc.
22, p. 52). This was Ms. Smith's only EEOC complaint
while she worked at the library. After Ms. Smith filed her
EEOC complaint, she alleges that Ms. Fout became upset with
her and made comments like “I will not forget this,
” “[I] could hold a grudge for you filing the
complaint, ” and “I knew you wouldn't win
because I know how to write these things.” (Doc. 1,
¶¶ 15-16). According to Ms. Smith, Ms. Fout
“created an adversarial hostile working
environment” because of the EEOC complaint. (Doc. 34,
p. 2). Ms. Smith states that Ms. Fout issued written warnings
to her for confrontations with other library employees,
exercised more direct oversight of the children's
department, and relieved Ms. Smith of certain managerial
responsibilities including the hiring of children's
department staff. (Doc. 1, ¶¶ 17-24, 37).
Fout issued written warnings to Ms. Smith on two occasions
after Ms. Smith filed the EEOC charge. (Doc. 22, pp. 20-22,
24-25). In June of 2013, one year after Ms. Smith filed her
EEOC charge, Ms. Fout counselled Ms. Smith for publically
reprimanding a member of the library custodial staff in front
of library patrons. (Doc. 22, p. 24). Ms. Fout acknowledged
that Ms. Smith had reason to correct the employee, but, after
soliciting feedback from employees with knowledge of the
incident, Ms. Fout determined that the public and
condescending nature of Ms. Smith's reprimand was
unacceptable. (Doc. 22, pp. 24-25). Although this was Ms.
Smith's first formal write-up, Ms. Fout indicated in the
warning notice that Ms. Smith had previously received
informal correction for the same type of behavior towards her
co-workers. (Doc. 22, p. 25).
Fout issued a second written warning to Ms. Smith on July 14,
2014, two years following the EEOC charge. (Doc. 22, p. 20).
On that occasion, Amanda Pierce, another children's
department employee, had emailed Ms. Smith to express her
dismay that Ms. Smith had publically reprimanded and
intimidated her on three occasions in the preceding week.
(Doc. 22, pp. 6-7, 12). Ms. Pierce copied Ms. Fout on her
email. (Doc. 22, p. 12). Ms. Fout sent an email to Ms.
Pierce, Ms. Smith, and Mary Eller, another children's
department employee, setting a meeting with the recipients
for 1:00 p.m. the next day to address Ms. Pierce's
concerns. (Doc. 22, pp. 7, 14). Ms. Fout called Ms. Smith at
her office the next morning to remind her of the meeting.
(Doc. 22, pp. 7, 16). Ms. Smith said she could not attend
because she had experienced a “flare-up” and
needed to see a doctor. (Doc. 1, ¶ 26; Doc. 22 pp. 16,
18). Shortly after their phone conversation, Ms. Smith sent
an email to Ms. Fout in which she expressed her frustration
at the incident with Ms. Pierce and stated that she would not
feel prepared to deal with the matter until the conclusion of
the library's summer reading program in two weeks'
time. (Doc. 22, p. 18).
Fout wrote back emphasizing the importance of resolving the
conflict quickly and advising Ms. Smith that, unless her
doctor's appointment directly conflicted, Ms. Smith
needed to attend the meeting. (Doc. 22, pp. 7, 18). Ms. Smith
did not respond to Ms. Fout's email, and she did not
attend the meeting that afternoon. (Doc. 22, pp. 7, 16). Ms.
Fout wrote a memo recording the exchange. She characterized
Ms. Smith's failure to attend the meeting as
“deliberate insubordination.” (Doc. 22, p. 16;
Doc. 1, ¶ 27). Ms. Fout sent Ms. Smith a copy of the
written warning and directed Ms. Smith to sign it and return
it by July 18, along with any response Ms. Smith wanted to
make. (Doc. 22, pp. 7, 22). Ms. Smith wrote Ms. Fout to say
that she could not properly respond to the warning until
after the summer program. (Doc. 22, pp. 21, 28).
library's summer reading program concluded on July 24,
2017. (Doc. 22, p. 8). Ms. Smith had returned a signed copy
of the warning on July 22, but had not made any further
response to Ms. Pierce's and Ms. Fout's complaints.
(Doc. 22, pp. 8, 21-22). On July 31, 2014, Ms. Fout issued a
notice of “Contemplated Disciplinary Action” to
Ms. Smith because Ms. Smith still had not responded to the
July 14th incident. (Doc. 22, p. 30). The notice
referenced Ms. Smith's habitual mistreatment of her
co-workers and her failure to address this issue as the basis
for the contemplated action. (Doc. 22, pp. 30-31). In
addition to the incident with Ms. Pierce, the notice cites
seven separate instances in which Ms. Smith behaved in a
confrontational or intimidating manner towards her coworkers.
(Doc. 22, p. 31). Ms. Fout placed Ms. Smith on paid
administrative leave pending the outcome of a hearing on the
notice. (Doc. 22, p. 31). According to Ms. Smith, this
suspension came a day after she had asked Ms. Fout about the
possibility of taking FMLA leave to care for her father who
had recently been hospitalized. (Doc. 1, p. 5).
library director, Ms. Fout held a disciplinary hearing on
August 6, 2014 that resulted in a decision to terminate Ms.
Smith's employment with the library effective August 15,
2014. (Doc. 22, pp. 35-36). Ms. Fout based her decision in
part on the testimony of Ms. Smith's co-workers. Ms.
Smith states that Ms. Fout actively solicited negative
testimonials from these persons during the disciplinary
proceedings. (Doc. 1, p. 10). The library's notice of the
decision to Ms. Smith lists a number of reasons for her
termination including her “fail[ure] to treat Library
employees with courtesy, consideration, respect and
professionalism, ” her coercion or intimidation of
library employees, and her insubordination. (Doc. 22, p. 35).
Ms. Smith appealed the decision which, upon review, was
upheld by an ad hoc committee of the Library Board, and then
by the full board of trustees. (Doc. 22, pp. 38, 43, 47).
December 3, 2014, Ms. Smith filed her second EEOC charge
against the Homewood Public Library, claiming that, in
deciding to end her employment, the defendants had
discriminated against her on the basis of her age, her
disability, and her prior EEOC complaint. (Doc. 1, pp.
14-16). The EEOC issued Ms. Smith a notice of dismissal and
right to sue on August 20, 2015. (Doc. 1, p. 17). Ms. Smith
then filed this action on November 18, 2015. (Doc. 1).
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). To demonstrate that there is a genuine
dispute as to a material fact that precludes summary
judgment, a party opposing a motion for summary judgment must
cite “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.”
Fed.R.Civ.P. 56(c)(1)(A). When considering a summary judgment
motion, the Court must view the evidence in the record and
draw reasonable inferences in the light most favorable to the
non-moving party. White v. Beltram Edge Tool Supply,
Inc., 789 F.3d 1188, 1191 (11th Cir. 2015). “The
court need consider only the cited materials, but it may
consider other materials in the record.” Fed.R.Civ.P.
Ms. Smith's Retaliation Claim
Smith claims that the defendants “intentionally
discriminated against [her] in retaliation [for] her earlier
EEOC complaint” in violation of Title VII. (Doc. 1, p.
7). Although, Ms. Smith states that this claim arises under
Title VII, the record indicates that her original EEOC
complaint - the protected activity that allegedly caused the
retaliation - was based on age and disability discrimination.
(Doc. 22, p. 52). Title VII does not cover either of these
categories. See 42 U.S.C. § 2000e-2(a)(1) &
(2) (prohibiting employment discrimination on the basis of
race, color, religion, sex, or national origin). Because the
Court liberally construes a pro se filing, the Court
recognizes that Ms. Smith asserts a claim for retaliation in
violation of the ADA and ADEA. See Evans v. Ga. Reg'l
Hosp., 850 F.3d 1248, 1253 (11th Cir. 2017). But the
framework for the Court's analysis of this claim is the
same as if it had been a Title VII claim. Standard v.
A.B.E.L. Servs., Inc., 161 F.3d 1318, 1328 (11th Cir.
Smith contends that there are genuine issues of fact
regarding “the connection between the filing of the
EEOC Complaint in 2012” and the defendants' efforts
“to create an untenable working condition and to
ultimately amass sufficient notations in the Plaintiff's
work file to mask the real intent of the Defendants - to
retaliate for her filing the EEOC Complaint.” (Doc. 34,
Smith argues that Ms. Fout's comments about Ms.
Smith's EEOC complaint and the fact that each of the
disciplinary actions occurred after Ms. Fout knew of the
complaint indicate that the defendants intended to retaliate
against Ms. Smith. (Doc. 34, p. 3). The defendants argue that
too much time separates Ms. Smith's EEOC complaint from
Ms. Fout's written warnings to create an inference of
retaliation. (Doc. 21-1, p. 7). The defendants also argue
that Ms. Smith's disciplinary history and insubordination
gave Ms. Fout and the Library Board legitimate cause to end
Ms. Smith's employment. (Doc. 21-1, p. 8).
the ADA and ADEA prohibit employers from retaliating against
employees for engaging in protected activity, which includes
complaints of an employer's discriminatory practice which
the employee believes in good faith to be unlawful.
See 29 U.S.C. § 623(d); 42 U.S.C. §
12203(a); Pipkins v. City of Temple Terrace, Fla.,
267 F.3d 1197, 1201 (11th Cir. 2001). A plaintiff may prove
her retaliation claim through direct or circumstantial
evidence that her employer retaliated against her because she
engaged in protected activity. Cofield v. Goldkist,
Inc., 267 F.3d 1264, 1267 n. 6 (11th Cir. 2001).
“[D]irect evidence is evidence proving, without
inference, that illegal reasons motivated an adverse
employment action. Quigg v. Thomas Cty. Sch. Dist.,
814 F.3d 1227, 1235 n. 5 (11th Cir. 2016) (citing Wilson
v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir.
2004)). “‘[O]nly the most blatant remarks, whose
intent could mean nothing other than to discriminate on the
basis of some impermissible factor, constitute direct
evidence of discrimination.'” Jones v. Gulf
Coast Health Care of Del., LLC, 854 F.3d 1261, 1270
(11th Cir. 2017) (quoting Wilson, 376 F.3d at
vein of direct evidence, the Court examines Ms. Fout's
alleged statements in response to Ms. Smith's EEOC
complaint: “I knew you wouldn't win because I know
how to write these things, ” “I will not forget
this, ” and “i [sic] could hold a grudge for you
filing the complaint.” (Doc. 1, ¶¶ 15,
The first statement is not direct evidence because it does
not relate to Ms. Fout's purported acts of retaliation.
Whatever the statement indicates about Ms. Fout's
attitude towards Ms. Smith's EEOC complaint, the comment
cannot be linked with the defendants' later alleged
retaliatory acts without certain inferences. The second and
third statements indicate that Ms. Fout was negatively
disposed towards Ms. Smith because of her EEOC complaint and
suggest that Ms. Fout might remain so disposed for some time.
But these statements require an inferential step to connect
the statements to the purported retaliation: that in
disciplining and eventually firing Ms. Smith, Ms. Fout was
acting on the basis of her grudge. Cf. Perry v. City of
Avon Park, Fla., 662 Fed.Appx. 831, 837 (11th Cir.
2016). Although the statements are strongly suggestive of Ms.
Fout's animus towards Ms. Smith, they are not direct
evidence of retaliation.
direct evidence of retaliation, the Court assesses the
sufficiency of Ms. Smith's circumstantial case for
retaliation under the framework established by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973) overruled in part on other grounds Ash v.
Tyson Foods, Inc., 546 U.S. 454, 457-58 (2006). Under
that framework, a plaintiff first must establish a prima
facie case. Wilson, 376 F.3d at 1087 (citing
Combs v. Plantation Patterns, 106 F.3d 1519, 1527-28
(11th Cir. 1997)). If the plaintiff succeeds, then the burden
shifts to the employer to articulate a legitimate reason for
the adverse employment actions taken. Furcron v. Mail
Centers Plus, LLC, 843 F.3d 1295, 1310 (11th Cir. 2016).
If the employer offers a legitimate reason, then the burden
returns to the plaintiff to show by a preponderance of the
evidence that the employer's legitimate reason is a
pretext for discrimination. Furcron, 843 F.3d at
1310-1311 (citing Bryant v. Jones, 575 F.3d 1281,
1308 (11th Cir. 2009)).
plaintiff establishes a prima facie case of retaliation by
showing that: “(1) [s]he engaged in statutorily
protected activity; (2) [s]he suffered a materially adverse
action; and (3) there was a causal connection between the
protected activity and the adverse action.” Howard
v. Walgreen Co., 605 F.3d 1239, 1244 (11th Cir. 2010).
By filing an EEOC complaint based on age discrimination, Ms.
Smith has shown that she engaged in activity protected by
both the ADA and ADEA. See 29 U.S.C. § 623(d);
42 U.S.C. § 12203(a). Under the second prong, an
employer's action is considered materially adverse if it
“might have dissuaded a reasonable worker from making
or supporting a charge of discrimination.”
Burlington N. and Santa Fe Ry. Co. v. White, 548
U.S. 53, 68 (2006) (internal quotations omitted). Here, there
is little doubt that a jury could find that the written
warnings and eventual termination alleged by Ms. Smith might
have dissuaded a reasonable worker from complaining of
question, then, is whether Ms. Smith provides evidence to
support an inference that the defendants' actions were
retaliatory responses to her EEOC complaint. At the first
stage of the inquiry, the plaintiff can prove causation
simply by showing “that the protected activity and the
negative employment action are not completely
unrelated.” Pennington v. City of Huntsville,
261 F.3d 1262, 1266 (11th Cir. 2001) (internal quotation
marks omitted). Ms. Smith filed her first EEOC complaint
alleging age discrimination in June of 2012. (Doc. 1, p. 15;
Doc. 34, ¶ 7). More than a year elapsed before Ms. Fout
issued a first written warning to Ms. Smith on July 15, 2013.
(Doc. 22, p. 24). Standing alone, the temporal relation
between the cause (the EEOC complaint) and its purported
effect (the first warning) does not help Ms. Smith's case
because the gap is too great to create an inference that the
events are related. See Thomas v. Cooper Lighting,
Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (“The
burden of causation can be met by showing close temporal
proximity between the statutorily protected activity and the
adverse employment action. But mere temporal proximity,
without more, must be very close.”) (internal citations
and quotations omitted). The gap between the protected
conduct and the alleged retaliation widens when one looks to
the second written warning and the termination decision, both
of which occurred more than two years after Ms. Smith filed
her EEOC complaint. (Doc. 22, pp. 20, 35).
Smith also offers Ms. Fout's statements indicating that
Ms. Fout became negatively disposed towards Ms. Smith as a
result of the EEOC complaint. (Doc. 1, ¶¶ 15, 16).
Ms. Fout's statements that she would not forget the
complaint and that she could hold a grudge against Ms. Smith
raise the possibility that Ms. Fout was simply waiting for an
opportunity to retaliate under circumstances that would
provide cover for her decision. The Court accepts this
explanation for the delay because the Court must make all
reasonable inferences in Ms. Smith's favor for purposes
of this motion. In light of this evidence, and the
plaintiff's light initial burden, Ms. Smith has
established her prima facie case for retaliation.
the burden shifts to the defendants to offer a
non-retaliatory explanation for the actions they took against
Ms. Smith. To bear their burden, the defendants must offer
legitimate reasons for their actions that “might
motivate a reasonable employer, ” but the defendants do
not have to prove that the proffered reasons were the actual
motivation for the actions they took. Chapman v. AI
Transp., 229 F.3d 1012, 1024, 1030 (11th Cir. 2000) (en
banc)); see also Kidd v. Mando Am. Corp., 731 F.3d
1196, 1205 ...