Cook v. City of Birmingham

          MEMORANDUM OPINION

          R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE

         This is an employment discrimination case in which Plaintiff Angela Cook claims that Defendant City of Birmingham discriminated against her because of her race (African-American) and gender (female), and retaliated against her in violation of Title VII of the Civil Rights Act of 1964, as amended, and 42 U.S.C. § 1981.^[1] (Doc. # 8). Specifically, Plaintiff claims that Defendant (1) failed to reimburse her for attending training in or around August 2016; (2) failed to compensate her for being a “training coordinator” for the months of November 2016 and December 2016; (3) treated a similarly situated Caucasian male, George Joiner, more favorably by allowing him to transfer to the day shift and giving him weekends and holidays off, but denying Plaintiff that same opportunity; and (4) decreased her overtime hours. (Doc. # 8 at 3-4, ¶¶ 19-24).^[2] Plaintiff also claims that Defendant retaliated against her after she complained to Lieutenant David Marable (Plaintiff's supervisor) about her shift assignment by denying her transfer to the day shift, denying her holidays and weekends off, and reducing her overtime hours. (Doc. # 8 at 14, ¶ 99; Doc. # 31-1 at 3, ¶ 7).

         Defendant filed its Motion for Summary Judgment on August 2, 2019. (Doc. # 27). The Motion has been fully briefed (see Doc. # 28, 31) and is ripe for review. After careful review, and for the reasons explained below, Defendant's Motion is due to be granted.

         I. Factual Background^[3]

         In April 1995, Plaintiff began her employment with Defendant. (Doc. # 31-1 at 1, ¶ 2). Plaintiff was (and currently is) employed as a Public Safety Dispatcher III (“PSD III”). (Id.). PSD IIIs work within the Birmingham Police Communications Center and report directly to the Sergeant in their unit. (Doc. # 29 at 4, 18, 26). At all relevant times, Plaintiff's supervisors were Lieutenant Marable, an African-American male, and Sergeant Curtis Coleman, an African-American male. (Doc. # 29 at 4-5).

         Much of the factual background below is found within a report authored by Internal Affairs Sergeant Katrina Johnson in April 2017, after Plaintiff filed her EEOC Charge. (See Doc. # 29 at 13-27).

         A. Facts Relating to Plaintiff's Title VII Discrimination Claims

         1. Reimbursement for Training

         In April 2016, Plaintiff submitted a request for leave to attend an APCO Training Conference in Orlando, Florida. (Doc. # 29 at 5, 15). However, Plaintiff had already been slated and approved to attend the NINA Training Conference in Indianapolis, Indiana. (Id. at 24). Plaintiff submitted her request for the APCO Conference to Gregory Silas (the 911 Director for the Birmingham Emergency District) after speaking to Lieutenant Demarcus Miller (her supervisor before Lieutenant Marable). Lieutenant Miller verbally gave Plaintiff permission “several months before the training occurred.” (Id. at 20).

         Plaintiff's request to attend the training conference fell during the same time she had “put in for vacation, ” although she states she did not realize that at the time. (Id. at 16). When Lieutenant Marable asked Plaintiff how she was going to attend the training, she told him “she was using her vacation.” (Id.). Sergeant Coleman also believed Plaintiff was using her vacation time for the training class and paying her own travel expenses. (Id. at 19). Silas reported that “at the time [Plaintiff] left for the training, she was aware that she would be paying for the training herself and she would have to take vacation to do so.” (Id. at 21). Nonetheless, as a result of her discussions with Silas, a reimbursement check was printed for Plaintiff.^[4] (Id. at 23). According to Silas, while his signature on a training request “signifies that the funds are available for the person to attend the training, ” his signature does not “approve who goes to the training.” (Id. at 20).

         Lieutenant Marable denied Plaintiff reimbursement for the training because Plaintiff did not submit her request to the proper authorities because Silas is not in Plaintiff's command structure.^[5] (Id. at 5). Plaintiff received a “counseling” for “manipulat[ing] the system” and “circumventing the chain of command” by taking “an expense report to [Silas] without [Marable's] signature, without [] Miller's signature or anyone's signature but hers and [] Silas' signature.” (Id. at 24).

         2. Compensation for Duties of “Training Coordinator”

         Plaintiff asserts that for the months of November and December 2016, she was not compensated for performing the duties of “Training Coordinator.” Lieutenant Marable found out that certain Communications Center employees “were inputting a half an hour each day whether they were training someone or not into TeleStaff [the time system].” (Doc. # 29 at 24). Lieutenant Marable believed the PSD IIIs were trying to be compared to “the sworn personnel's Field Training Officers[, which] receive a 5% increase for assuming extra duties of training others, which is not a part of a Police Officer's job duties. The job duties of a PSD III include training PSD IIs and PSD Is, as well as other supervisory duties.” (Doc. # 29 at 6). According to Deputy Chief Irene Williams:

[T]he PSD III positions were approved by the Personnel Board and they became supervisors for the PSD I and PSD IIs. . . . [I] found out about the training increase [the PSD IIIs] were giving themselves by Ms. Peggy Polk [the payroll coordinator and then-director of Human Resources] and it was stopped because they could not do that. . . . They were already getting their pay increase from being supervisors and they could not get any type of training pay. Training is a part of their duties as a supervisor and Training Officer Status is only provided for sworn officers.

(Doc. # 29 at 25). Soon after Lieutenant Marable discovered this practice, it was stopped. (Id. at 24). Plaintiff was not the only employee who was affected by this change. (Id. at 6).

         3. Plaintiff's Transfer Request and Her Comparator Evidence

         PSD IIIs work in shifts. Each shift, except for the day shift, has two PSD IIIs on duty. The day shift, however, has only one PSD III on duty because a Sergeant is also on duty. (Doc. # 29 at 18). Day shift PSD IIIs and Sergeants have off days on Saturday and Sunday. Plaintiff has Sunday and Monday as her off days. (Id.).

         Plaintiff spoke to Lieutenant Marable about “revamping the off days for the supervisors.” (Id. at 16). Her request was denied. (Id.). Plaintiff also requested -- based on her seniority -- to transfer to the day shift and to have weekends and holidays off. (Doc. # 29 at 24; Doc. # 31-1 at 3, ¶¶ 4-5). George Joiner (rather than Plaintiff) was transferred to the day shift.^[6]

         Joiner was also employed as a PSD III. In 2016, Joiner filed a Family Medical Leave Act (“FMLA”) request. (Doc. # 29 at 6). Joiner requested to work the day shift (7:00 a.m. to 3:00 p.m.) due to his battle with a terminal illness and “the need to attend [d]octor's visits during the day.” (Id. at 7). Joiner's request was approved^[7] as an accommodation by Human Resources, and he was granted “continuous FMLA from September 29, 2016 to October 18, 2016, and [he was] approved for Intermittent FMLA beginning October 19, 2016. (Doc. # 29 at 11). Joiner began working the day shift on October 25, 2016. (Doc. # 29 at 7). On October 24, 2016, Plaintiff “was notified that [she] was being involuntarily assigned to take Joiner's place on the morning shift (10:00 p.m. - 6:30 a.m.) with Joiner's off days (Sun-Mon).” (Doc. # 31-1 at 3, ¶ 5).

         In February 2017, Joiner took a leave of absence. (Doc. # 29 at 7). He did not return to work, and he passed away in August 2017. (Id.).

         4. Overtime Hours

         PSD IIIs are able to work overtime hours. (Doc. # 29 at 19, 25). “[T]he Sergeant puts out a list by email and [the PSD IIIs] respond to the email” by selecting the day(s) the employee wishes to work.^[8] (Id.). Plaintiff claims that she consistently worked 16-20 hours of overtime a week.^[9](Doc. # 31-1 at 3, ¶ 7).

         Subsequently, Plaintiff complained to Lieutenant Marable regarding Joiner's transfer to the day shift and the denial of her transfer request. (Id. ¶¶ 6-7). Plaintiff asserts that after she complained, her overtime hours were “substantially reduced, ” and “the majority of her overtime hours were divided between Vicki Young and Carol Bryant.” (Id. ¶ 7). However, according to Lieutenant Marable, Plaintiff “has never been denied [the opportunity] to work overtime on the weekends, ” and she “has received overtime opportunities.” (Doc. # 29 at 7, 25). Defendant's overtime hours log indicates that from January 1, 2016 to August 2, 2019, Plaintiff worked a total of 1, 604.55 hours of overtime-the fifth most out of the 13 employees listed on the sheet.^[10] (Doc. # 29 at 31).

         B. Facts Related to Plaintiff's Claim of Retaliation

         In addition to complaining to Lieutenant Marable about Joiner's transfer, Plaintiff also told Lieutenant Marable that she believed the denial was due to race and gender discrimination. (Doc. # 31-1 at 3, ¶ 6). After making her complaints, Plaintiff claims that her overtime hours were “drastically decreased while others' overtime hours remained the same or were increased.” (Id. ¶ 94). Lieutenant Marable does not recall Plaintiff's complaints about the transfer denial and asserts that Plaintiff did not request the transfer until after Joiner had been transferred. (Doc. # 29 at 7, 25).

         On February 2, 2017, Plaintiff filed her Equal Employment Opportunity Commission (“EEOC”) Charge of Discrimination. (Doc. # 8-1 at 2). She filed her Complaint in this action on September 29, 2017. (Doc. # 1). On November 2, 2017, Plaintiff filed an Amended Complaint. (Doc. # 8). Her Amended Complaint alleges race discrimination (Count One), gender discrimination (Count Two), and retaliation (Count Three). (Doc. # 8 at 4, 8, 12).

         II. Standard of Review

         Under Federal Rule of Civil Procedure 56, 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 requires the non-moving party to go beyond the pleadings and -- by pointing to affidavits, or depositions, answers to interrogatories, and/or admissions on file --designate specific facts showing that there is a genuine issue for trial. Id. at 324.

         The substantive law will identify 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 Allen v. Bd. of Pub. Educ. for Bibb Cty., 495 F.3d 1306, 1314 (11th Cir. 2007); 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.

         When faced with a “properly supported motion for summary judgment, [the nonmoving party] must come forward with specific factual evidence, presenting more than mere allegations.” Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997). As Anderson teaches, under Rule 56(c) a plaintiff may not simply rest on her allegations made in the complaint; instead, as the party bearing the burden of proof at trial, she must come forward with at least some evidence to support each element essential to her case at trial. See Anderson, 477 U.S. at 252. “[A] party opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.'” Id. at 248 (citations omitted).

         Summary judgment is mandated “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., 477 U.S. at 322. “Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative.” Sawyer v. Sw. Airlines Co., 243 F.Supp.2d 1257, 1262 (D. Kan. 2003) (citing Anderson, 477 U.S. at 250-51).

         “[A]t the summary judgment stage the 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.” Anderson, 477 U.S. at 249. “Essentially, the inquiry is ‘whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.” Sawyer, 243 F.Supp.2d at 1262 (quoting Anderson, 477 U.S. at 251-52); see also LaRoche v. Denny's, Inc., 62 F.Supp.2d 1366, 1371 (S.D. Fla. 1999) (“The law is clear . . . that suspicion, perception, opinion, and belief cannot be used to defeat a motion for summary judgment.”).

         III. Analysis

         The court begins its analysis by reviewing Defendant's Motion for Summary Judgment on Plaintiff's claims of race discrimination (Count One) and gender discrimination (Count Two).^[11]The court will then address Plaintiff's claim of retaliation (Count Three). After careful review, the court concludes that Defendant's Motion for Summary Judgment is due to be granted.

         A. Plaintiff's Race and Gender ...