United States District Court, N.D. Alabama, Southern Division
MICHAEL PUTNAM UNITED STATES MAGISTRATE JUDGE
cause is before the court on the motion for summary judgment
filed July 30, 2018, by the defendant, City of Birmingham.
Defendant seeks dismissal of all of plaintiff's claims
arising from alleged discrimination at her workplace. This
matter has been fully briefed, and the court has considered
the evidence and arguments set forth by both parties. The
parties have consented to the exercise of jurisdiction by the
undersigned magistrate judge pursuant to 28 U.S.C. §
SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56(c), summary judgment is
proper "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed.R.Civ.P. 56(c). The
party asking for summary judgment "always bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of
'the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if
any,' which it believes demonstrate the absence of a
genuine issue of material fact." Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P.
56(c)). The movant can meet this burden by presenting
evidence showing there is no dispute of material fact, or by
showing that the nonmoving party has failed to present
evidence in support of some element of its case on which it
bears the ultimate burden of proof. Celotex, 477
U.S. at 322-23. There is no requirement, however, "that
the moving party support its motion with affidavits or other
similar materials negating the opponent's
claim." Id. at 323.
the moving party has met his burden, Rule 56(e)
"requires the nonmoving party to go beyond the pleadings
and by her own affidavits, or by the 'depositions,
answers to interrogatories, and admissions of file,'
designate 'specific facts showing that there is a genuine
issue for trial.'" Id. at 324 (quoting
Fed.R.Civ.P. 56(e)). The nonmoving party need not present
evidence in a form necessary for admission at trial; however,
he may not merely rest on his pleadings. Celotex,
477 U.S. at 324. "[T]he plain language of Rule 56(c)
mandates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial."
Id. at 322.
the plaintiff has properly responded to a proper motion for
summary judgment, the court must grant the motion if there is
no genuine issue of material fact, and the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
The substantive law will identify which facts are material
and which are irrelevant. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute is genuine
"if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party."
Id.at 248. "[T]he judge's function is not
himself to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial." Id. at 249. His guide is the same
standard necessary to direct a verdict: "whether the
evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law." Id. at
251-52; see also Bill Johnson's Restaurants, Inc. v.
N.L.R.B., 461 U.S. 731, 745 n.11 (1983). However, the
nonmoving party "must do more than show that there is
some metaphysical doubt as to the material facts."
Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). If the evidence
is merely colorable, or is not significantly probative,
summary judgment may be granted. Anderson, 477 U.S.
at 249 (citations omitted); accord Spence v.
Zimmerman, 873 F.2d 256 (11th Cir. 1989). Furthermore,
the court must "view the evidence presented through the
prism of the substantive evidentiary burden," so there
must be sufficient evidence on which the jury could
reasonably find for the plaintiff. Anderson, 477
U.S. at 254; Cottle v. Storer Communication, Inc.,
849 F.2d 570, 575 (11th Cir. 1988). Nevertheless, credibility
determinations, the weighing of evidence, and the drawing of
inferences from the facts are the function of the jury, and
therefore the evidence of the non-movant is to be believed
and all justifiable inferences are to be drawn in his favor.
Anderson, 477 U.S. at 255. The non-movant need not
be given the benefit of every inference but only of every
reasonable inference. Brown v. City of Clewiston,
848 F.2d 1534, 1540 n.12 (11th Cir. 1988).
the evidence provided by both parties in the light most
favorable to the nonmoving plaintiff, the following facts are
considered true for purposes of the defendant's motion
for summary judgment.
Shanta Bolden is an African American female who was, at all
times relevant to the complaint, employed as a dispatcher for
the City of Birmingham, working within the police department.
As of the time the matter was briefed, she remained employed
as a Public Safety Dispatcher III (“PSD III”) in
the police department's communications division. The
police chief is the department head, and plaintiff's
immediate supervisors at the relevant time were Sgt. Curtis
Coleman and Lt. David Marable. Both are African American
Joiner, a Caucasian male, was employed as a PSD III with the
City until he died in 2017. Joiner is identified by the
plaintiff as the comparator who was treated more favorably
than was she.
City employs 50 to 60 public safety dispatchers, and each
dispatcher is assigned to work one of three shifts, which
will be referred to as day shift, evening shift, and night
shift. Bolden was hired in 2003 as a PDS II. Joiner was hired
on December 1, 2012 as a PSD III. On that same date, Bolden
was promoted to PSD III. Bolden is not the most senior person
in the communications division, but the second most senior.
has been given eight disciplinary actions during her
employment, including disciplinaries for tardiness, being
absent without leave, using profanity while dispatching, and
sleeping on the job. She describes the disciplinary actions
as arising from "training issues." She had the
right to appeal the actions. She appealed only one of them,
and it was upheld. She filed her EEOC charge six months after
the most recent disciplinary, which was issued for failure to
abide by orders given to her by Coleman.
fall of 2016, Joiner filed a request for leave under the
Family Medical Leave "ct. He was granted continuous FMLA
leave from September 29, 2016, until October 18, 2016, and he
was granted intermittent FMLA leave beginning on October 19,
2016. He applied again for intermittent leave on February 17,
2017, and it was granted. Joiner was terminally ill, and
requested that he work the day shift so that he could attend
doctors' appointments. His request was granted. Joiner
died in August of 2017. Plaintiff has no personal knowledge
of Joiner's illness, employment status, personnel
actions, or any accommodations that may have been requested
or granted on account of his medical issues.
September 7, 2017, Bolden, appearing pro se, filed
the complaint that commenced this action. She filed an
amended complaint, with the assistance of counsel, on
September 25, 2017. She asserts that she was discriminated
against on account of her race and gender and that she was
retaliated against after engaging in statutorily protected
conduct. More specifically, she alleges that she was denied
an opportunity to work the day shift, while Joiner, a white
male, was allowed to work the day shift which also gave him
weekends and holidays off. She ...