Smith v. City of Birmingham

          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. ...