United States District Court, N.D. Alabama, Southern Division
ANGELA L. COOK, Plaintiff,
CITY OF BIRMINGHAM, Defendant.
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
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. (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). 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).
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.
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).
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).
Facts Relating to Plaintiff's Title VII Discrimination
Reimbursement for Training
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).
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. (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).
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. (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).
Compensation for Duties of “Training
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).
Plaintiff's Transfer Request and Her Comparator
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.).
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.
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 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).
February 2017, Joiner took a leave of absence. (Doc. # 29 at
7). He did not return to work, and he passed away in August
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. (Id.). Plaintiff claims that
she consistently worked 16-20 hours of overtime a
week.(Doc. # 31-1 at 3, ¶ 7).
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. (Doc. # 29 at 31).
Facts Related to Plaintiff's Claim of
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).
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).
Standard of Review
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.
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.
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
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
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.”).
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).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.
Plaintiff's Race and Gender ...