United States District Court, N.D. Alabama, Northwestern Division
N. JOHNSON, JR., UNITED STATES MAGISTRATE JUDGE.
action proceeds before the court on defendant's Motion
for Judgment on the Pleadings. (Doc. 30). Defendant directs
the motion to plaintiff's third amended complaint and the
addition thereto. (Docs. 14 & 15). Plaintiff also filed
additional allegations on August 3, 2018 (Doc. 47), which the
court considers as part of her pleadings for purposes of this
motion. For the reasons set out herein, the court
GRANTS Defendant's motion.
may move for judgment on the pleadings only after the
pleadings are closed. See Fed. R. Civ. P. 12(c).
“Judgment on the pleadings is proper when no issues of
material fact exist, and the moving party is entitled to
judgment as a matter of law based on the substance of the
pleadings and any judicially noticed facts.”
Interline Brands, Inc. v. Chartis Specialty Ins.
Co., 749 F.3d 962, 965 (11th Cir. 2014)
(internal citation omitted). In determining whether a
defendant is entitled to judgment on the pleadings, courts
must “accept all the facts in the complaint as true and
view them in the light most favorable to the non-moving
party.” Id. The court treats the factual
allegations in the non-moving party's pleadings as true,
and takes as true those moving party allegations which do not
conflict with the non-moving party's pleadings. If
denied, the court deems the moving party's allegations
false. Hawthorne v. Mac Adjustment, Inc., 140 F.3d
1367, 1370 (11th Cir. 1998). If comparison of the
averments in the pleadings reveals a material dispute of
fact, the court must deny judgment on the pleadings.
Perez v. Wells Fargo N.A., 774 F.3d 1329, 1335
(11th Cir. 2014).
ruling on a motion for judgment on the pleadings, courts
apply the same standards as applied to a Rule 12(b)(6) motion
to dismiss. See Strategic Income Fund, LLC v. Spear,
Leeds & Kellogg Corp., 305 F.3d 1293, 1295 n.8
(11th Cir. 2002). A court must grant the motion
for judgment on the pleadings if, “on the basis of a
dispositive issue of law, no construction of the factual
allegations will support the cause of action.”
Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas
Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).
Accordingly, to avoid the granting of judgment on the
pleadings, “a complaint must contain sufficient factual
matter, accepted as true, to state a claim for relief that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (internal quotation omitted).
“Dismissal is not appropriate unless the complaint
lacks sufficient factual matter to state a facially plausible
claim for relief that allows the court to draw a reasonable
inference that the defendant is liable for the alleged
misconduct.” Jiles v. United Parcel Serv.,
Inc., 413 Fed.Appx. 173, 174 (11th Cir. 2011)
(per curiam) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 556, 570 (2007)).
Audrey Mitchell, an African-American female, formerly served
as the University of North Alabama's (UNA) Director of
Environmental Services and Housing Facilities
Management. UNA originally hired Mitchell as
Coordinator of Administration in the Department of Housing
and Residence Life on August 9, 1999. UNA named Mitchell
Interim Director of Housing and Residence Life in 2004,
choosing her over Kevin Jacques (Caucasian), who served as
Associate Director of Residence Life. Jacques reported to
Mitchell when she served as Interim Director. After UNA
promoted Mitchell over him, Jacques undermined Mitchell and
reported anything to their supervisor, Thomas Lovett
(Caucasian), which Jacques believed may result in discipline
for Mitchell. However, Lovett never verbally reprimanded her
or disciplined her in writing.
hired David Shields (Caucasian) in 2006 as Vice President of
Student Affairs. After his hire, Shields split the Housing
and Residence Life Department into the Department of Housing
and the Department of Residence Life. He named Jacques as
Director of Residence Life and Mitchell as Director of
Housing. Jacques reported alleged issues with Mitchell to
Shields, and Mitchell had to respond to the allegations and
refute them. Mitchell alleges Shields and Jacques schemed
together to look for any possible mistake by Mitchell and
treated Mitchell more harshly than her Caucasian
example of this alleged unequal treatment, Mitchell recounts
an incident occurring during the Summer and Fall 2009
semesters. Mitchell submitted a purchase order to Cindy
Conlon's office for replacement furniture for a student
apartment; Conlon (Caucasian) approved the purchase order.
After delivery of the furniture, Mitchell realized she
omitted a dinette set. She submitted a purchase order for a
dinette set. However, Conlon advised Mitchell she could not
make the purchase without a bid and Conlon's previous
approval for purchase of the other furniture constituted a
mistake, against bidding law, and she should not have
approved it. Conlon instructed Mitchell to request a
disbursement from the Controller's office. Donna Tipps
(Caucasian), the Controller at that time, returned the
disbursement request to Mitchell and admonished her for
submitting it. Mitchell emailed Tipps, with a copy to Conlon,
advising Conlon directed her to submit the requisition to
or June 2010, Shields contacted Mitchell about reports he
received that Mitchell authorized donating UNA furniture to
students. Mitchell denied the allegations and asked Shields
to speak to Assistant Director of Housing Jimmy Waddell
(Caucasian). When Shields spoke with Waddell, he first
informed Waddell he was not attempting to “get”
anyone, in particular Mitchell. Waddell related to Shields
that several Resident Assistants and two professional staff
members approached him about obtaining old furniture which
UNA was discarding; Waddell allowed them to retrieve some
couches. Waddell also allowed an indigent family to obtain
two couches. Waddell informed Shields he did so without
Mitchell's knowledge or approval. Approximately a week
later, Shields asked Waddell to document the incident.
Waddell submitted written documentation on June 24, 2010.
Waddell never received any reprimand or other disciplinary
action for this incident, despite violating UNA policy.
Mitchell believes Shields wanted Waddell to implicate
Mitchell; when Waddell denied Mitchell had any knowledge of
the incident, Shields abandoned the matter.
14, 2010, Mitchell met with Shields and Director of Human
Resources and Affirmative Action Catherine White (Caucasian).
At the meeting, Mitchell received an official reprimand
letter and a $3, 000 salary reduction for that year for
authorizing replacement of a student's stolen property
rather than requiring the student to submit the request to
the State Board of Adjusters. The complaint originated from
Conlon. Mitchell claims White advised her to file
any appeal with UNA President William Cale (Caucasian). Cale
and Shields previously worked at the same institution.
appealed the disciplinary action to Cale on July 18, 2010.
She provided over 20 exhibits to her six-page appeal designed
to demonstrate to Cale that Mitchell suffered discrimination
and harassment, including the incident with Conlon and Tipps.
Mitchell avers Conlon asked Cale to reprimand Mitchell for
her actions regarding the furniture. Mitchell contends
Shields and White knew Cale should not decide her appeal
because of his involvement in effecting her discipline, yet
they concealed this fact from Mitchell. Cale failed to meet
with Mitchell about her appeal or investigate her claims, and
he provided Mitchell's documentation to Shields but
failed to provide her with documents Shields supplied to
hearing on Mitchell's appeal convened August 6, 2010. A
participant referred to a letter Shields submitted to Cale
concerning his findings during an investigation, which
Shields had not provided to Mitchell. Hearing chair Tom
Osborne (Caucasian) stopped the hearing to provide Mitchell a
copy of the letter; however, Mitchell did not have time to
read it because the hearing reconvened as soon as she
received a copy. Mitchell had to respond to the contents of
the letter at the hearing, without preparation. During the
hearing, White advised that she, Shields, Cale, and Vice
President Steve Smith (Caucasian) decided Mitchell's
sanction, and Cale gave final approval. The appeal committee
suggested other options for Mitchell's discipline, yet
Cale opted to impose the original sanctions and probation.
Mitchell claims she provided proof that Conlon violated
policy by approving the initial replacement furniture
purchase, yet UNA took no disciplinary action against her.
She also asserts the mistreatment and harassment she
experienced stemmed from Shields' desire to create a
reason to terminate her or force her resignation.
faults Cale for failing to meet with her about the
documentation she provided; instead, Cale directed her in a
letter to meet with Shields to work out their differences.
However, when Director of Student Conduct and Assessments
Kimberly Greenway (Caucasian), who also reported to Shields,
expressed issues with Shields, Cale met with her and provided
advice. Cale then met with Shields, and Shields subsequently
apologized to Greenway.
the pay reduction, Mitchell documented every interaction and
endeavored to ensure her decisions and processes exceeded her
Caucasian counterparts. She dreaded meeting with Shields
because he demeaned her actions and questioned her judgment.
Shields credited Jacques over Mitchell, despite Mitchell
providing proof Jacques acted incorrectly. At one point,
Greenway reported to Shields that Mitchell had been off work
more than usual due to family illness, and thus, Mitchell
believed officials watched her attendance more closely than
2013, the local newspaper published an article regarding
construction of new residence halls at UNA which portended a
loss of jobs. When Environmental Services staff, who reported
to Mitchell, queried Shields about the article, he stated
Mitchell should have informed them about the plans, and in
the future, he would inform her staff directly regarding any
developments that may affect their jobs. Mitchell contends
Cale should have informed UNA staff before releasing the
information to the newspaper, rather than Mitchell, because
she had no authority to lay off or terminate employees, and
Shields only told the Environmental Services employees
Mitchell should have notified them to undermine her and make
her appear incompetent. Mitchell did not report Shields'
actions to Human Resources or Cale because she believed they
would only cover for Shields.
4, 2013, a resident emailed Mitchell that someone on
Mitchell's staff took belongings from the resident's
room. Mitchell investigated the report by speaking with
Brenda Terry (Caucasian), the person responsible for cleaning
the building. Terry relayed that on July 2, 2013, she saw two
Caucasian Resident Assistants loading items into a car parked
by the building. Video footage confirmed Terry's report.
A day later, another resident reported someone removed
belongings from her room, and Mitchell advised the student to
inquire about her belongings with Resident Life. Resident
Life Senior Administrative Assistant Patricia Wood
(Caucasian) inquired if the resident had checked out of her
room, which the resident denied. Wood advised the resident to
return for her belongings in a couple of days; the resident
never received all of her property. The resident informed
Mitchell that several residents reported to Shields that
their property was missing from their rooms, leading Shields
to wonder aloud about Jacques' office's involvement.
Mitchell instructed Waddell to save the video footage from
July 2. Mitchell contends the two Resident Assistants, whom
Jacques supervised, committed felony theft, with Shields'
knowledge, yet they received no reprimand or other
2014, Shields announced to Mitchell's staff in a combined
meeting with Jacques' staff that UNA would combine their
areas and name a new executive director. However, Shields
knew UNA had not approved this action. Mitchell never agreed
to the reorganization, though UNA told the Equal Employment
Opportunity Commission during its investigation she had done
so. Mitchell characterizes this statement as a blatant and
intentional lie to cover up Shields' discrimination,
harassment, and coercion of Mitchell and UNA's failure to
prevent or correct Shields' behavior.
11, 2014, Mitchell and Waddell attended a meeting to discuss
reorganization, which Shields and White also attended.
Shields began the meeting by discussing an earlier meeting
Mitchell and Waddell had with then Vice President for
Business and Financial Affairs Clinton Carter (Caucasian), of
which Shields only recently became aware. Shields told
Mitchell and Waddell that as a result of the meeting, they
pitted Carter against Shields, lost credibility, and caused
embarrassment to themselves, the Student Affairs Division,
and Shields. Shields considered their actions grounds for
dismissal. Shields then discussed the reorganization, which
would result in demotions for Mitchell and Waddell, and asked
if they were in agreement with possible job reclassification
and reduction in payment. Shields provided Mitchell and
Waddell with a copy of the reorganization chart and job
met with Interim President John Thornell on July 14, 2014.
Waddell shared his copy of the reorganization chart with
Thornell, who claimed he had not seen the chart. Waddell also
inquired about Shields' comments about possible dismissal
from UNA, claiming the comments caused Waddell and Mitchell
to feel threatened and subjected to retaliation. Thornell
advised them to convey to Shields their acceptance of the
reorganization to avoid the appearance of insubordination. He
also stated he would meet with White about the information
Waddell shared with him at this meeting.
met with Thornell on July 22, 2014. She discussed with him
several incidents over the years she perceived as harassing
and discriminatory, such as the 2010 sanction and appeal and
the July 2, 2013, furniture removal incident. She further
expressed her belief that Shields had White present at the
July 11 meeting to intimidate Mitchell and Waddell into
agreeing to the reorganization; lied about their meeting with
Carter being an offense subjecting them to possible
dismissal; and lied about the reorganization being a fait
accompli that did not need their approval. She also shared
her belief Shields intended to promote Jacques to Executive
Director, making Jacques Mitchell's supervisor. Mitchell
voiced her concern about any further one-on-one meetings with
Shields and her inability to continue to report to Shields,
and requested that UNA move her department under Clinton
October 2014, instead of transferring Mitchell's
department under Carter, Shields created a new position for
her still reporting directly to Shields. Mitchell believed
she would have some input into the decision, based on her
discussion with Thornell; however, Shields rejected her idea.
Shields described Mitchell's new assignment as a
coordinator position yet still at a Director level. Mitchell
considered the position a “lame duck” position
without authority, performed under the monitoring of Shields
in the office next to his. (Doc. 14 at 35). Mitchell advised
Thornell she would not accept the position, but UNA offered
Mitchell no other solution. Therefore, Mitchell had to
continue reporting to Shields for several months and
perceived this as punishment.
lodged an EEOC charge and UNA received notification about
December 4, 2014. She contends UNA purposefully lied to the
EEOC that she agreed to the reorganization to make
Mitchell's claims appear frivolous.
Mitchell and Waddell met with Carter and White about
relocating under Carter's division. They told Mitchell
Shields would allow the relocation if UNA divided
Mitchell's area, placing the older residence halls and
apartments under Mitchell's control and placing Jacques
in control of two new halls being built, as well as newer
cluster halls. Mitchell declined this arrangement, along with
other possible arrangements suggested at three later
meetings. Carter reminded Mitchell if she did not accept any
of the offers, she would remain under Shields'
January 9, 2015, Shields agreed to allow Mitchell's
Department of Housing to transfer under Carter's
supervision. When Mitchell expressed to Thornell concerns
about reprisal, he responded that the situation was similar
to a divorce and all parties needed to move on. Mitchell
alleges she experienced several incidents of retaliation and
reported some, to no avail. Carter told her if she continued
to make reports, it would not fare well for her and that the
EEOC charge needed to go away.
chronicle the claimed retaliation, Mitchell cites changes to
the 2015-2016 UNA catalog portraying all areas of
Mitchell's responsibility falling under Jacques despite
the transfer to Carter's supervision, thus making it
appear that Mitchell no longer worked for UNA. In addition,
Mitchell cites a May 18, 2015, meeting in Jacques' office
attended by people representing various areas of campus,
including Carter, Mitchell, and Mitchell's new
supervisor. Shields told the gathering he went through
Mitchell's UNA website and found errors, such as a link
to an incorrect form.
had her administrative assistant correct the error within
minutes. However, Jacques' UNA website contained multiple
errors which Shields did not address, and certainly not in a
roomful of peers.
addition, in June 2015, Shields included in a report
embarrassing and untruthful information allegedly concerning
Mitchell's area. However, the information appeared in
the section involving University Residences, Jacques'
area of responsibility. UNA usually disseminates the report
to the media, deans, vice presidents, and Board members a
week prior to the Board of Trustees meeting. Waddell reported
the inclusion of this statement to Carter. The morning of the
meeting, before it convened, Shields edited the report to
omit the erroneous statement.
met with Carter, at Mitchell's request, on June 9, 2015,
to inquire about UNA's position on Shields' actions.
Carter related that Shields apologized to him and expressed
lack of knowledge that Jacques had included this statement,
but Mitchell believed Shields should have apologized to her.
Mitchell alleges Shields reads the annual reports before
submitting the final copy for the Board meeting; therefore,
he must have been aware of its inclusion. Mitchell faults
Shields for failing to reprimand Jacques. When she complained
to Carter, Carter discouraged her from reporting everything.
Therefore, Mitchell advised Carter she would cease reporting
to him and instead would document and submit her observations
to the EEOC and her attorney; he agreed that might be best.
alleges she reported harassment, discrimination, and coercion
numerous times to numerous UNA authorities starting in 2010,
yet none of these persons took any action. She also contends
Carter's admonition to cease reporting all actions which
she believed discriminatory, harassing, and retaliatory
countermands UNA policy. She cites Carter's admonition as
further evidence of a hostile work environment. She had to
argue and resist Carter's attempts to give some of her
areas of responsibility to Shields, and faults Carter for
advising her to learn how to play office politics rather than
protecting her. Mitchell alleges she began experiencing
elevated blood pressure in 2011 and commenced medication to
treat this ailment. After one particularly stressful
interaction with Carter in December 2014, Mitchell's
blood pressure rose to dangerous levels.
also alleges she requested a copy of her personnel file but
found it did not contain all documentation she submitted
regarding her 2010 discipline. When Mitchell contacted
Cale's office, he stated he would allow her to review her
file, under supervision, but she could not make copies or
take pictures. Mitchell claims the failure to allow her to
copy her file violated UNA's policy.
also refers to a policy violation by another African-American
employee which resulted in termination. This employee,
Jermaine Ferguson, transferred from Mitchell's department
to Shields' and Jacques' department, and Mitchell
claims they used Ferguson to obtain information about
Mitchell. However, when they no longer found him useful to
them, they terminated him for a minor infraction.
cites one instance during which she felt physically
threatened and afraid. On August 5, 2016, after Mitchell no
longer worked under Shields, the fire alarms in
Mitchell's work building went off. After Mitchell left
the building and then returned, the alarms continued to
sound. Shields entered Mitchell's office without warning
to advise her that they could not find the problem and all
personnel had to evacuate the building again. Mitchell
alleges she was startled and afraid because she did not know
if Shields might snap, because of their prior difficult
interactions, and possibly cause her physical harm. She
expressed her preference that Shields never enter her office
September 14, 2016, Mitchell attended a meeting with White,
Shields, Jacques, and interim Vice President for Business and
Fiscal Affairs Evan Thornton. At the meeting, White read a
statement noting the ongoing conflict between Mitchell and
Jacques, which caused dysfunction at UNA and negatively
affected the students. Therefore, UNA hired a consultant to
assist in resolving the conflict. White requested Mitchell
and Jacques prepare position statements on the issues as they
perceived them. She admonished both of them to work through
their issues and collaborate in a functional manner, or risk
termination for insubordination. She mentioned problems
occurring during the Fall 2016 student move-in. White also
stressed the confidential nature of the process and stated
she would act as their sole source of contact.
avers she received no notification or complaints about
problems arising when the students returned for fall
semester, and that her area no longer bears responsibility
for the move-in process. Rather, her only involvement
pertains to providing custodial support at Jacques'
request. She expresses surprise that problems with the
move-in process would lead UNA to hire a consultant, when her
complaints over the years fell on deaf ears and prompted no
asserts this litigation and reports about it in the student
newspaper have angered UNA, and UNA therefore is retaliating
against her by labeling her as a troublemaker and trying to
gather evidence to terminate her. Mitchell alleges current
UNA President Kenneth Kitts knows about the events of the
past years, yet instead of addressing her concerns, he has
accused her of committing acts causing harm to UNA, its
students, and their parents, by hiring a consultant and
threatening her job when she has no awareness of the basis
for such accusations.
complains she had to endure much to receive protection and
relocation, even with documentation, yet Caucasian
counterparts can achieve a person's removal with little
to no evidence. As an example, she cites 2015 accusations by
Caucasian women that their director made derogatory remarks
about females, resulting in his immediate removal from his
position based only on their word. Some of the women recanted
their statements, but UNA did not reinstate the director;
however, he received a Friend of the University award and
appeared in the homecoming parade. Mitchell contrasts this
with her protests, supported by documentation, which failed
to result in Shields' removal.
stated previously, Mitchell filed an EEOC charge in December
2014, alleging race discrimination. It appears she filed an
amended charge on January 13, 2015. (Doc. 1-1). Mitchell also
filed an EEOC charge of retaliation in March 2015
(420-2105-01362), which she intended as an amendment to her
January 2015 charge. However, the EEOC closed its
investigation and sent a notice of right to sue on that
charge in March 2015.
Third Amended Complaint, Mitchell asserts causes of action
for race discrimination, pursuant to Title VII and 42 U.S.C.
§ 1981; retaliation, pursuant to Title VII and 42 U.S.C.
§ 1983; violation of Fourteenth Amendment due process
rights, pursuant to 42 U.S.C. § 1983; hostile work
environment, pursuant to Title VII and 42 U.S.C. § 1981;
coercion, in violation of Alabama Code § 13A-6-25; and
defamation, pursuant to Alabama Code § 15-8-150.
notice filed August 3, 2018, Mitchell asks the court to
consider additional allegations in support of her claims in
this action. She avers that on January 19, 2017,
Catherine White convened a meeting which included Mitchell,
Shields, Jacques, White, and Evan Thornton (Caucasian). White
announced effective February 1, 2017, Mitchell's area of
responsiblity would transfer back under the auspices of
Shields and combine with Jacques' area, with Kimberley
Greenway serving as Executive Director over the combined
area. Greenway stated Mitchell's office would adjoin
Jacques' office ...