United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION [1]
JOHN
H. ENGLAND, III, UNITED STATES MAGISTRATE JUDGE
Through
her amended complaint, Plaintiff Darshae Smith
(“Smith” or “Plaintiff) brings this
employment discrimination action against Defendant the City
of Birmingham (the “City” or
“Defendant”). (Doc. 23). The City has moved for
summary judgment on all of Smith’s claims. (Docs. 32).
Smith opposes this motion, (docs. 37), and the City has filed
a reply brief in support, (doc. 42). The motion is fully
briefed and ripe for review. (Docs. 33, 37 & 42). For the
reasons stated more fully below, the motion is
GRANTED IN PART and DENIED IN
PART.
I.
Standard of Review
Under
Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is proper “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.” “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.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The moving party bears the initial burden of proving the
absence of a genuine issue of material fact. Id. at
323. The burden then shifts to the nonmoving party, who is
required to “go beyond the pleadings” to
establish that there is a “genuine issue for
trial.” Id. at 324. (citation and internal
quotation marks omitted). A dispute about a material fact is
genuine “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
The
Court must construe the evidence and all reasonable
inferences arising from it in the light most favorable to the
non-moving party. Adickes v. S.H. Kress & Co.,
398 U.S. 144, 157 (1970); see also Anderson, 477
U.S. at 255 (all justifiable inferences must be drawn in the
non-moving party’s favor). Any factual disputes will be
resolved in Plaintiff’s favor when sufficient competent
evidence supports Plaintiff’s version of the disputed
facts. See Pace v. Capobianco, 283 F.3d 1275,
1276-78 (11th Cir. 2002) (a court is not required to resolve
disputes in the non-moving party’s favor when that
party’s version of the events is supported by
insufficient evidence). However, “mere conclusions and
unsupported factual allegations are legally insufficient to
defeat a summary judgment motion.” Ellis v.
England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per
curiam) (citing Bald Mtn. Park, Ltd. v. Oliver, 836
F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere
‘scintilla’ of evidence supporting the opposing
party’s position will not suffice; there must be enough
of a showing that the jury could reasonably find for that
party.” Walker v. Darby, 911 F.2d 1573, 1577
(11th Cir. 1990) (citing Anderson, 477 U.S. at 252).
II.
Summary Judgment Facts
The
City is a municipal corporation under Alabama law. (Doc. 20-1
at ¶ 5). Smith, who is female, began working for the
City on July 27, 2015, as a temporary laborer with the
City’s Department of Public Works. (Id at
¶¶ 4-5; Deposition of Darshae Smith, doc. 33-1
(“Smith Depo.”) at 6 (21:17-22); Deposition of
Andrea Travis Stallworth, Doc. 33-4 (“Stallworth
Depo.”) at 31 (123:1-4)). Smith was not a permanent
employee. (Smith Depo. at 6 (21:4-14); Stallworth Depo. at 31
(123:23-124:1)). As a temporary laborer, Smith’s duties
primarily involved cutting grass, picking up paper, and
generally keeping the City of Birmingham clean. (Smith Depo.
at 6-7 (20:22-22:9); Stallworth Depo. at 31 (124:3-6)).
When
Smith started working for the City, her immediate supervisor
was Gerald Young (“Young”). (Smith Depo. at 6
(22:16-19)). Young’s supervisor was Gjamal Rodriguez
(“Rodriguez”). Rodriguez also supervised Smith,
although he was not her immediate supervisor. (Smith Depo. at
6 (22:10-19)). Rodriguez’s supervisor was former Deputy
Director Alfred Menifield (“Menifield”).
(Stallworth Depo. at 32 (127:18-20)). And Menifield was
supervised by former Public Works Director Stephen Fancher
(“Fancher”). (Id (127:21-23)). Rodriguez
was not Smith’s immediate supervisor. (Smith Depo. at 6
(22:10-23:11); Stallworth Depo. at 32 (128:18-20)).
Beginning
in August 2015, Rodriguez began to sexually harass Smith.
(Smith Depo. at 8 (31:22-32:20)). Rodriguez made comments
such as: “you look good in those jeans”; “I
sure would like to touch”; “you look good
today”; “I’m the man to get you in, you
know, if you just give me what I want”; “you know
what I want, I told you you look good”; “you are
young and tender”; “are you going to try it
out?”; and “You know I can’t have sex with
my wife because she got cancer, and we can’t have sex
right now. So I’m looking for someone to have sexual
relations with.” (Smith Depo. at 8-10 (32:12-39:12)).
At one point, Rodriguez called Smith on her cellphone and
asked if they could “get up” when he returned
from a five-day trip to Atlanta for his wife’s cancer
treatment; tired of Rodriguez’s comments, Smith stated
“I’m going to see what I can do, but I doubt it
if I can get up with you like that.” (Smith Depo. at 10
(38:12-39:12)). Smith recalled five specific instances of
Rodriguez’s advances, but testified Rodriguez made
similar comments “every day” and asked her to go
out with him and to have sex on numerous occasions. (Smith
Depo. at 10-11 (40:21-41:7-23)). Fearing termination, Smith
did not report any of Rodriguez’s conduct to anyone
with the city between July 27, 2015 and January 22,
2016.[2] (Smith Depo. at 12 (47:12-48:14)).
The
City terminated Smith’s temporary employment on January
22, 2016, ostensibly for lack of funding; she and
approximately two hundred other temporary laborers were laid
off. (Smith Depo. at 31; Stallworth Depo. at 31-32
(124:7-125:4)). Andrea Travis Stallworth
(“Stallworth”), the City’s administrative
service manager for the Public Works Department, testified
that Rodriguez had no authority to promote, hire, or fire
Smith and could not promise her a job. (Stallworth Depo. at
32 (128:14-18)).[3] However, Smith testified that after
she was terminated, Rodriguez called her and told her:
“If you would have did what I told you to do, then you
would have had your permanent position before the 22nd, the
layoff date, but I’m going to still put you on the list
to come back to the City of Birmingham.” (Smith Depo.
at 11 (42:19-43:12)). Smith testified that she was told
supervisors could make recommendations as to hiring or
firing. (Id. (43:22-44:8)).
On June
22, 2016-about five months after Smith’s
termination-Smith scheduled a meeting with Peggy Pope
(“Pope”), the City’s head of Human
Resources (“HR”). (Smith Depo. at 12
(45:20-46:16)). Since Pope was not there, Smith met with two
other HR representatives: Jennifer Samuelson
(“Samuelson”) and Tina Bray. (Id.;
Samuelson Depo. at 3 (11:19-23)). At the meeting, Smith
stated she had voice recordings showing Rodriguez had made
sexual advances towards her. (Smith Depo. at 13 (49:3-51:7);
Samuelson Depo. at 3-4 (12:6-13:10), 24-25). Smith did not
show up to a follow-up meeting on June 27, 2016, nor did she
call to reschedule or return Samuelson’s phone calls.
(Samuelson Depo. at 4 (13:11-16), 7 (25:15-24)). Smith filed
an EEOC charge related to Rodriguez’s harassment on
July 8, 2016. (Doc. 41-5).
On
August 8, 2016, the City re-hired Smith as a temporary
laborer to begin a new temporary assignment. (Smith Depo. at
13 (52:9-23)). Although Rodriguez was not Smith’s
supervisor and Smith was not assigned to work with him,
Fancher was still the ultimate decisionmaker regarding
Smith’s employment. (Id. at 14 (53:1-6);
Stallworth Depo. at 8-9 (32:14-35:1)). Smith’s
temporary assignment began in the horticulture department
under a chain of command that did not include Rodriguez, but
shortly afterward she was transferred to the sewer
maintenance department.[4] (Smith Depo. at 15 (59:20-60:4);
Stallworth Depo. at 32 (125:15-126:12)).
On
February 28, 2017, Smith’s supervisor, Senior
Construction Supervisor Mike Brown (“Brown”)
wrote Smith up for “Insubordination, Failure to comply
with Instructions given by a Superior Officer or Supervisor,
Violation of Mayor’s Executive Order 50-86 General
Safety Rules 3.0 PPE (foot wear), Violations of Departmental
Directive 5-6 PPE, City of Birmingham Supplemental Personnel
Policies and Procedures 2.2 Core Values and Expected Employee
Behavior, Failure to meet the minimum standards of a
Temporary Employee.” (Doc. 37-1 at 5). To substantiate
this, the write-up indicated:
On or about February 13, 2017, Senior Construction
Supervisor, Mike Brown, had his first meeting with the Storm
Sewer Crew as their new supervisor. At this meeting he
noticed that you, Ms. Darshae Smith, was [sic] not wearing
safety shoes. It was mentioned that all employees need to
comply with the uniform policy. Mr. Brown was informed that
you had not worn safety shoes since your temporary employment
started. On 2/13/2017 the District Supervisor, Charles
Stewart, told you to get safety shoes. On the morning of
2/21/2017, Mike Brown met with the Storm Crew and you did not
have safety shoes. Mr. Brown instructed you again, to get
sturdy work shoes, that night. You took off work the next
day. On 2/24/2017 Mike Brown saw you at North Lot without
safety shoes. He took a picture of you. When you came to work
Monday, 2/27/2017, you were wearing safety shoes.
(Id.). Prior to the write-up, Smith had explained
that she had not acquired safety shoes because a house fire
had destroyed her work boots.[5] (Smith Depo. at 15
(60:12-23)). As noted in the report, Smith had reported to
work the day prior to the write-up with the correct
shoes.[6] Smith denied that she had been told
previously to wear proper safety shoes. (Id.).
Smith’s
disciplinary history prior to the write-up consisted of two
warnings for tardiness. (Doc. 37-1 at 2-4). Stallworth
testified two tardiness violations would not have placed
Smith’s job in jeopardy. (Stallworth Depo. at 10
(39:13-17)). On March 1, 2017, the City obtained statements
from six coworkers regarding Smith’s shoe-related
violation, only one of which indicated that Smith had worn
“tennis shoes” to work. (Doc. 41-3). Other
workers indicated they had not paid attention to
Smith’s shoes, and one coworker stated she was told she
“HAD TO” write a statement. (Id.).
On
March 7, 2017, Smith received a “Notice of
Determination Hearing” from Fancher, setting
Smith’s hearing for the following day. (Doc. 37-1 at
7). Menifield handled the disciplinary investigation and
conducted the determination hearing. (Doc. 37-1 at 7).
Fancher, who was on vacation and not present at the
disciplinary hearing, ultimately signed off on the decision
to terminate Smith on March 8, 2017.[7] (Doc. 37-1 at 8;
Smith Depo. at 1 (58:11-15); Stallworth Depo. at 14
(55:12-17)).
The
City follows the Rules and Regulations of the Personnel Board
of Jefferson County and the City of Birmingham Supplemental
Human Resources Policies and Procedures when disciplining its
employees. (Stallworth Depo. at 5 (20:2-6), 11
(42:18-43:22)). These policies apply to all employees,
regardless of classification status. (Id.). Past
rules infractions are taken into account in administering
discipline only if (1) they occurred in the previous twelve
months and (2) were the same type of offense. (Id.
at 28 (109:19-111:16)).
Rodriguez
has a lengthy disciplinary history stretching back to 2003,
including write-ups for being late to work, being out of
uniform (on two occasions), damaging city equipment, failing
to report a fight between coworkers, gambling and paying off
gambling debts during working hours, taking unauthorized
breaks, failing to secure city equipment (ultimately
resulting in the theft of the equipment), and
insubordination. (Stallworth Depo. at 19-26 (76:6-88:20,
91:7-101:14); doc. 38-2). Despite this, Rodriguez has
received several promotions, and has received a maximum
punishment of a three-day suspension from Fancher for failing
to report the fight.[8] (Stallworth Depo. at 20 (79:16-80:12),
23 (89:3-90-9)).
III.
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