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Smith v. Library Board of City of Homewood

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

April 30, 2018




         Plaintiff 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. 1).[1] 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. 35).[2] For the reasons stated below, the Court grants the defendants' motion for summary judgment.


         Dona 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).

         Ms. 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.[3] 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).

         Ms. 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).

         Ms. 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).

         Ms. 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).

         The 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).

         As 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).

         On 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).


         “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). 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. 56(c)(3).


         a. Ms. Smith's Retaliation Claim

         Ms. 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. 1998).

         Ms. 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, p. 5).

         Ms. 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).

         Both 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 1086.).

         In the 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, 16).[4] 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.[5]

         Without 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)).

         A 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 discrimination.[6]

         The 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.[7] 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).

         Ms. 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.

         Therefore, 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 ...

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