United States District Court, N.D. Alabama, Southern Division
JAY F. JOHNSON, Plaintiff,
MARK T. ESPER, SECRETARY OF THE UNITED STATES DEPARTMENT OF ARMY, Defendant.
ANNEMARIE CARNEY AXON, UNITED STATES DISTRICT JUDGE.
Jay F. Johnson, proceeding pro se, brings this
employment action against Defendant Mark T. Esper, in his
official capacity as the Secretary of the United States
Department of Army, for alleged discrimination, hostile work
environment, and retaliation in violation of Title VII of the
Civil Rights Act of 1964. (Docs. 1 and 21). The action is
before the court on the Secretary's motion for summary
judgment. (Doc. 44). The motion is fully briefed. (Docs. 45,
56, 57). For the reasons discussed below, the court finds
that there is no dispute of genuine material fact, and the
Secretary is entitled to judgment as a matter of law.
Therefore, the court WILL GRANT the
Secretary's motion for summary judgment.
The Secretary's Challenge to Mr. Johnson's Statement
Secretary argues that the court should deem his statement of
undisputed facts admitted because Mr. Johnson did not follow
Rule 56 or the court's Initial Order. (Doc. 57 at 4).
Under Rule 56, a party “asserting that a fact cannot be
or is genuinely disputed must support the assertion by 
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 . . .
.” Fed.R.Civ.P. 56(c)(1)(A). In keeping with that
requirement, Appendix II to this court's Uniform Initial
Order requires that, to show a genuine dispute of material
fact, the non-moving party must provide “a specific
reference to those portions of the evidentiary record
upon which the dispute is based.” (Doc. 51 at 16)
(emphasis in original). The Order warns that “[a]ll
material facts set forth in the [movant's] statement . .
. will be deemed to be admitted for summary judgment purposes
unless controverted by the response of the party opposing
summary judgment.” (Id.) (emphasis in original
omitted). A party's pro se status does not
excuse failure to follow Rule 56 or the court's orders.
See Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.
1989) (“[O]nce a pro se  litigant is in
court, he is subject to the relevant law and rules of court,
including the Federal Rules of Civil Procedure.”).
the Court reminded Mr. Johnson of the requirements of Rule
56, including “his right to file affidavits or other
materials in opposition to the [Secretary's] motion,
” and the court directed Mr. Johnson to the
requirements of Appendix II. (Doc. 52). The court warned Mr.
Johnson of the consequences of not complying with Rule 56,
including that the Secretary's statement of facts may be
deemed admitted, the motion for summary judgment may be
granted, and judgement entered in the Secretary's favor.
(Id. at 2). Nevertheless, Mr. Johnson generally
failed to comply with Rule 56 and Appendix II by not
“citing to particular parts of materials in the
record” or by “showing that the materials cited
[by the Secretary] do not establish the absence of a genuine
dispute . . . .” Fed.R.Civ.P. 56(c)(1); see
also Doc. 56. Consequently, the court does not consider
Mr. Johnson's statement of facts that are not supported
by any citations to the record, (see Doc. 56 at
5-32), and the court accepts the Secretary's statement of
facts as undisputed. But, as it must in considering a motion
for summary judgment, the court carefully examined the
evidence cited by the Secretary and construes the facts in
the light most favorable to Mr. Johnson, the non-movant.
See Hamilton v. Southland Christian Sch., Inc., 680
F.3d 1316, 1318 (11th Cir. 2012)
his brief, Mr. Johnson submitted an unsworn statement from
Ray Minter, his former supervisor. (Doc. 56 at 35-39). The
court previously explained to Mr. Johnson that
“[a]ffidavits must either be notarized or be subscribed
as true under penalty of perjury.” (Doc. 52 at 4).
Thus, the court cannot and does not consider Mr. Minter's
unsworn statement. See Dudley v. City of
Monroeville, 446 Fed.Appx. 2014, 2017 (11th Cir. 2011)
(“Unsworn statements do not meet the requirements of
Rule 56, so the district court could not-and properly did
not- rely on the contents of the citizen's [unsworn]
statement.”) (citing Carr v. Tatangelo, 338
F.3d 1259, 1273 n.27 (11th Cir. 2003)).
this background, the undisputed material facts, discussed
below, demonstrate that summary judgment is appropriate.
Undisputed Material Facts
Johnson is employed by the Department of the Army as the
Director of Emergency Services at the Anniston Army Depot.
(Doc. 44-2 at 5; Doc. 44-8 at 4). In this role, Mr. Johnson
oversees the Depot's law enforcement, security, and fire
operations. (Doc. 44-8 at 4). His immediate supervisor is the
Chief of Staff at the Army Depot. (Doc. 44-4 at 3). Until
2008, Ray Minter was Chief of Staff, and from 2008 to the
present, Phil Trued has been the Chief of Staff. (Doc. 44-4
Johnson's next level supervisor is the Depot Commander.
(Doc. 44-4 at 3; Doc. 44-8 at 8). Col. Sherry Keller served
as the Depot Commander from August 2007 to August 2010. (Doc.
44-4 at 2). Mr. Johnson, a Caucasian man, asserts that
Col. Keller, an African-American woman, discriminated against
him on the basis of his race and sex, subjected him to a
hostile work environment on the basis of his race, and then
retaliated against him when he complained of the
discrimination and harassment. (Doc. 21).
to Mr. Johnson, Col. Keller's discriminatory actions and
harassment began in August 2007 when she became the Depot
Commander and continued until she left the Army Depot in
August 2010. (Doc. 21 at 2; Doc. 56 at 3). Mr. Johnson
complains about a number of alleged discriminatory and
retaliatory acts. (Doc. 24-1; Doc. 44-8 at 7). For the sake
of clarity, the court will address the alleged discriminatory
and retaliatory acts chronologically by category.
Alleged Discriminatory Acts
The July 2007 Letter of Instruction
2007, one month before Col. Keller became the Commander, Mr.
Minter issued a Letter of Instruction (“LOI”)
regarding Mr. Johnson's role in handling traffic stops at
the Army Depot. (Doc. 44-4 at 94-95). LOIs instruct Army
employees about how an individual commander wants certain
tasks to be carried out. (Doc. 44-4 at 12, 20). LOIs are not
disciplinary in nature, and they are not placed in an
employee's personnel file or any other permanent
employment record. (Id. at 12; Doc. 44-2 at 30).
from Mr. Minter directed Mr. Johnson to call one of his
employees to handle a traffic stop if he observed a traffic
infraction. (Doc. 44-4 at 94-95). The purpose of the LOI was
to remind Mr. Johnson that as a civilian employee, his job
responsibilities include “policy guidance, oversight,
and leadership in all areas of DES [Department of Emergency
Services] operation, ” and that trained uniformed or
investigator DES employees who report to Mr. Johnson should
carry out all traffic stops on Depot property. (Doc. 44-4 at
Keller was not involved in issuing the LOI to Johnson.
(Id. at 20; Doc. 44-2 at 29-30). Even so, sometime
in the fall of 2007, a TACOM employee told Col. Keller that
the LOI unreasonably restricted Mr. Johnson's authority.
(Doc. 44-4 at 20; Doc. 44-2 at 29-30). Col. Keller did not
rescind the LOI because it was issued during the previous
command, and LOIs are not presumed to remain in effect after
a change of command. (Id. at 20). According to Col.
Keller, she did not believe she needed to address the LOI
after her discussion with the TACOM employee because she had
already implemented her own procedures, and Mr. Minter told
her that no action needed to be taken. (Id.).
Indeed, at the administrative proceedings, Mr. Minter
testified that he did not believe that Col. Keller needed to
take any further action on the LOI. (Doc. 44-2 at 30).
The change in command and changes in procedures
Col. Keller assumed command of the Army Depot in August 2007,
she adjusted certain policies and procedures to reflect her
preferences and to update or modernize the operations at the
Depot. (Doc. 44-4 at 6). Mr. Johnson contends that some of
the changes Col. Keller implemented at DES were directed
towards him and discriminatory in nature.
Change in Badge Denial Procedures
to Mr. Johnson, he had final authority to deny access, or
deny a badge, to the Army Depot before Col. Keller became the
Commander, but he concedes that the Commander could override
his decision to deny a badge on a case by case basis. (Doc.
44-8 at 11; Doc. 44-2 at 6). In September 2007, a former
contractor at the Army Depot, who had applied for a new
position at the Depot, contacted Col. Keller to challenge Mr.
Johnson's decision to deny him a badge. (Doc. 44-4 at 4;
Doc. 44-2 at 6). Col. Keller then contacted Mr. Johnson to
request a briefing on access control procedures at the Depot,
including the policies and standards for denying access or a
badge. (Doc. 44-4 at 4-5).
the briefing, Col. Keller decided that Mr. Johnson would send
any badge denial decision to the Depot's legal department
for a recommendation, and then send the decision and
recommendation to her for final approval. (Id. at 5;
Doc. 44-2 at 7; Doc. 44-8 at 13). Col. Keller made the change
to ensure that badge denial decisions were not arbitrary and
to protect the Depot from legal challenges to badge denials.
(Doc. 44-4 at 5). The change did not impact Mr. Johnson's
authority regarding badge denial decisions because he
remained responsible for initial decisions regarding all
badge denials, and his decision would remain in place unless
Col. Keller reversed it. (See Doc. 44-4 at 5; Doc.
44-8 at 11). After she instituted the change, Col. Keller did
not override any of Mr. Johnson's badge denial decisions.
(Doc. 44-8 at 13).
Change in Procedure Regarding the Military Police
October 2007, Col. Keller also reviewed the procedures
regarding the distribution of the military police desk
blotter, a “daily report of noteworthy events and
operations that impacted Depot operations and security . . .
.” (Doc. 44-4 at 6-7; Doc. 56 at 114-15). Col. Keller
requested that the key portions of the blotter she needed to
see be copied from the blotter into a “broader daily
report” prepared by members of her staff. (Doc. 44-4 at
6-7; Doc. 56 at 113). Mr. Johnson objected to the change
because he believed it was contrary to the applicable
regulations regarding distribution of the blotter, and he
told Col. Keller that the regulations prohibited him from
giving the blotter to Sgt. Major Gregory Williams. (Doc. 44-4
at 7-8; Doc. 56 at 103-07, 115). According to Mr. Johnson,
when he informed Col. Keller during a meeting that he could
not comply with her request based on the regulations, Sgt.
Major Williams and Col. Keller shouted “wrong
answer” and became so confrontational that Mr. Johnson
asked his subordinates to leave the meeting. (Doc. 44-2 at 8;
Doc. 44-8 at 19). Ultimately, Col. Keller withdrew her
request to have her staff extract information from the
blotter for her, and she asked that the blotter be delivered
to her office in a sealed envelope instead of by fax. (Doc.
44-4 at 8; Doc. 44-8 at 17). That change did not impact Mr.
Johnson's responsibilities over the blotter. (Doc. 44-4
at 8; Doc. 44-8 at 19).
Investigations, Meetings, and LOIs Relating to
Department of Emergency Services (“DES”)
Morale Surveys and Sensing Sessions
after Col. Keller assumed command of the Army Depot, the
TACOM Inspector General (“IG”) informed her of
some complaints from DES employees and that he was in the
process of setting up a “sensing session, ” or
morale survey for the employees. (Doc. 44-4 at 3-4, 9). The
IG sent the survey to DES employees in October 2007.
(Id. at 28). Col. Keller did not make the decision
to issue the survey, and the IG did not consult her about the
questions to include in the survey. (Id. at 9).
Based on the survey results, the IG found “significant
climate concerns” at DES and recommended following up
with focused feedback sessions and developing a strategy to
address major concerns, including by forming a climate focus
group for DES. (Id. at 10, 41). To address the
IG's recommendations, Col. Keller considered implementing
a “communications forum” to give DES employees an
opportunity to be heard on a variety of issues, and she sent
an email to Depot employees, including Mr. Johnson, asking
for feedback on the idea. (Doc. 44-4 at 10, 43). Col. Keller
decided not to conduct the communications forum, and instead,
she held an in-person “sensing session” with DES
employees in early 2008. (Id. at 10-11).
The 15-6 Investigations
addition, shortly before Col. Keller became Commander at the
Army Depot, the previous Commander initiated an investigation
into the Depot's fire department, and DES was the subject
of a union allegation related to an employee's suicide.
(Doc. 44-4 at 3-4; Doc. 44-8 at 56). The resulting
investigation under Army Regulation 15-6 did not begin until
after Col. Keller became Commander at the Depot. (Doc. 44-8
at 56; Doc. 44-4 at 12-13, 64). Col. Keller appointed Darrell
Brewer to lead the investigation. (Doc. 44-4 at 13). Col.
Keller initiated a second “15-6 investigation” of
DES in January 2008 after receiving a directive to do so from
TACOM. (Id. at 12; see also doc. 15 at
62-63). Specifically, TACOM directed Col. Keller to
investigate issues identified through IG complaints and the
IG's morale survey, including issues related to Mr.
Johnson's distribution of overtime hours. (Doc. 44-4 at
12; Doc. 15 at 62-63). Col. Keller appointed Emma Wilson to
lead that investigation. (Doc. 44-4 at 12, 53, 58).
Keller did not direct the 15-6 investigations, but she
accepted the findings and recommendations from the
investigations because she believed that Mr. Brewer and Ms.
Wilson complied with Army Regulation 15-6, which requires
that “the investigating officer must ‘ascertain
and consider the evidence on all sides of an issue' and
‘be thorough and impartial.'” (Id.
at 13, 79). TACOM also reviewed the scope and findings of the
investigations, and requested updates from Col. Keller on
actions taken to address issues identified in the
investigations. (Id. at 13).
Meetings about Employee Concerns
January 2008, Col. Keller received a letter from LaToya
Colston-Jackson, a DES employee, about issues related to a
requested job transfer and her shifts at the Army Depot.
(Doc. 44-4 at 85-87). Ms. Colston-Jackson alleged that she
had been asking Mr. Johnson for help for more than a year
without any results. (Id. at 87). Col. Keller
approached Mr. Johnson about the situation to use it as a
specific example of the type of issues raised in the sensing
sessions. (Id. at 15). During a meeting between Col.
Keller, Mr. Johnson, and Ms. Colston-Jackson to address the
issue, Col. Keller accused Mr. Johnson of showing “poor
leadership.” (Doc. 44-8 at 20-21). According to Mr.
Johnson, he had been working to accommodate Ms.
Colston-Jackson's needs and concerns, and Col. Keller was