United States District Court, N.D. Alabama, Southern Division
E. Ott Chief United States Magistrate Judge.
Kawanna Howard filed a complaint in this court alleging she
was discriminated against by her former employer because of
her sex in violation of Title VII of the Civil Rights Act of
1964. (Doc. 1 at 2-12). Now before the court is the Defendant
Robert Wilkie, Secretary, Department of Veteran Affairs'
(“Veteran Affairs”) motion to
dismiss or, in the alternative, motion for summary
judgment. (Doc. 8). The motion has been fully briefed, (docs.
9, 17, 24), and is now ripe for decision. For the reasons
that follow, the motion for summary judgment is due to be
STANDARD OF REVIEW
Defendant's motion is couched as a motion to dismiss and
an alternative motion for summary judgment, a review of the
briefing convinces the court that it should consider the
motion as one for summary judgment, as opposed to a motion to
dismiss. In support of the motion, Defendant filed 117 pages
of evidence, including the entire EEOC Report of
Investigation. (Doc. 10). In response to the motion,
Plaintiff filed a brief in opposition to the substantive
arguments presented by Defendant, filed her own affidavit in
support of her claims and cites to evidence filed by
Defendant. (Docs. 17-1 & 17-2).
Rule of Civil Procedure 12(d) states: “[i]f, on a
motion under Rule 12(b)(6) or 12(c), matters outside the
pleadings are presented to and no excluded by the court, the
motion must be treated as one for summary judgment.”
The Rule instructs the court that the “parties must be
given a reasonable opportunity to present all the material
that is pertinent to the motion” if the court treats it
as one for summary judgment. Fed.R.Civ.P. 12(d). Here, the
filings by the parties clearly indicate that they were aware
that the court may consider the motion one for summary
judgment and were given the opportunity to present all
materials in support or in opposition to the motion.
Accordingly, the court will treat the motion as one for
summary judgment and consider the evidence before it.
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
judgment as a matter of law.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The party asking for
summary judgment always bears the initial responsibility of
informing the court of the basis for its motion and
identifying those portions of the pleadings or filings which
it believes demonstrate the absence of a genuine issue of
material fact. Id. at 323. Once the moving party has
met its burden, Rule 56(e) requires the non-moving party to
go beyond the pleadings and by his own affidavits, or by the
depositions, answers to interrogatories, and admissions on
file, designate specific facts showing there is a genuine
issue for trial. See Id. at 324.
substantive law identifies which facts are material and which
are irrelevant. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). All reasonable doubts about the
facts and all justifiable inferences are resolved in favor of
the non-movant. See Fitzpatrick v. City of Atlanta,
2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248. If the evidence is merely
colorable, or is not significantly probative, summary
judgment may be granted. See id. at 249.
STATEMENT OF FACTS
began working as a Food Service cashier at the Canteen at the
Veterans Administration Medical Center in Tuskegee, Alabama,
on February 4, 2015. (Doc. 17-2 (“Howard Aff.”)
¶ 4; Doc. 1 ¶ 7). Johnny Lavalais was the Canteen
Chief and William Williams was a Canteen supervisor. Williams
was Howard's immediate supervisor. (Id. ¶
end of her shift on May 1, 2015, Williams instructed Howard
to report to work at the Canteen in Montgomery, Alabama.
(Id. ¶ 10). Howard called Lavalais for further
instructions, and he told her to report to work at 8:00 a.m.
on Monday, May 4, 2015. (Id. ¶¶11-12). On
May 4th, Howard arrived on time, but Lavalais was not there.
(Id. ¶¶13, 14). She stayed until 10:00
a.m. and then left. (Id. ¶ 14). After she left,
Howard called the Canteen several times that day, but
Lavalais was not there. (Id. ¶ 15). Howard
finally got in touch with Lavalais at 2:30 p.m., but he told
her that he was busy. (Id. ¶ 16).
following day, Howard reported to the Canteen in Montgomery
and asked Lavalais “why he asked [Howard] to travel to
Montgomery knowing he was not going to be there.”
(Id. ¶ 17). “After [Howard] questioned
him, [ ] Lavalais stated that [she] was terminated.”
(Id. ¶ 18). When Howard asked him why she was
being terminated Howard told her “because I can”
and that he did not have a reason. (Id. ¶ 19).
After she was terminated, Howard returned to the Canteen in
Tuskegee to talk to Williams and get her termination papers.
(Id. ¶ 20). Williams told her to come back at
4:00 p.m. (Id. ¶ 21). When she returned, she
asked Williams for her personnel file, but he did not have it
and did not know where it was located. (Id.
August 27, 2015, Williams called Howard's union
representative, Bobby Henderson, in an effort to contact
Howard regarding future employment. (Id. ¶ 26).
Henderson got in touch with Howard, and she called Williams
who told her to report to the Tuskegee VA in the next 30
minutes to complete an employment application. (Id.
¶¶ 27-28). Howard completed the application and
provided Williams a cancelled check for payroll purposes.
(Id. ¶¶ 29-31).
September 4, 2015, Williams called Howard and told her she
would begin work on September 8, 2015, at 8:00 a.m.
(Id. ¶ 32). Approximately two hours later,
however, Williams called Howard and told her that he could
not rehire her because she “was terminated in the
Veterans Canteen Services system.” (Id. ¶
33). Williams stated that Lavalais made the decision to not
rehire Howard because he “did not want to rehire an
employee whom [sic] had attendance problems.” (Doc. 10
December 10, 2015, Howard participated in an Alternative
Dispute Resolution telephone conference with Abner Martinez,
Natasha Holloman, the EEO representative, and Henderson
“in an attempt to resolve the
issue.” (Howard Aff. ¶ 34). During the
conference call, Martinez stated “several times”
that Howard was not terminated in the VA system.
(Id. ¶ 37). Holloman asked Martinez to contact
Williams “to rehire [Howard] because [she] was not
terminated in the system.” (Id. 42). She told
Martinez that “he had the weekend to find [Howard] a
job within the VCS [Veterans Canteen Services]
department.” (Id. ¶ 43).
same people participated in another telephone conference on
December 14, 2015. (Id. ¶ 45). Martinez
reported that there were no available positions to hire
Howard. (Id. ¶¶ 46, 48). Howard contends,
however, that “several men have been hired since [her]
termination.” (Id. ¶ 50). Martinez also
stated that he would email Howard's contract to
Henderson, but he never received a copy of her contract.
(Id. ¶¶ 51-52).