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Johnson v. Esper

United States District Court, N.D. Alabama, Southern Division

February 22, 2019

JAY F. JOHNSON, Plaintiff,



         Plaintiff Jay F. Johnson, proceeding pro se, brings this employment action against Defendant Mark T. Esper, in his official capacity as the Secretary of the United States Department of Army, for alleged discrimination, hostile work environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964. (Docs. 1 and 21).[1] The action is before the court on the Secretary's motion for summary judgment. (Doc. 44). The motion is fully briefed. (Docs. 45, 56, 57). For the reasons discussed below, the court finds that there is no dispute of genuine material fact, and the Secretary is entitled to judgment as a matter of law. Therefore, the court WILL GRANT the Secretary's motion for summary judgment.

         I. BACKGROUND

         A. The Secretary's Challenge to Mr. Johnson's Statement of Facts

         The Secretary argues that the court should deem his statement of undisputed facts admitted because Mr. Johnson did not follow Rule 56 or the court's Initial Order. (Doc. 57 at 4). Under Rule 56, a party “asserting that a fact cannot be or is genuinely disputed must support the assertion by [] citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials . . . .” Fed.R.Civ.P. 56(c)(1)(A). In keeping with that requirement, Appendix II to this court's Uniform Initial Order requires that, to show a genuine dispute of material fact, the non-moving party must provide “a specific reference to those portions of the evidentiary record upon which the dispute is based.” (Doc. 51 at 16) (emphasis in original). The Order warns that “[a]ll material facts set forth in the [movant's] statement . . . will be deemed to be admitted for summary judgment purposes unless controverted by the response of the party opposing summary judgment.” (Id.) (emphasis in original omitted). A party's pro se status does not excuse failure to follow Rule 56 or the court's orders. See Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989) (“[O]nce a pro se [] litigant is in court, he is subject to the relevant law and rules of court, including the Federal Rules of Civil Procedure.”).

         Here, the Court reminded Mr. Johnson of the requirements of Rule 56, including “his right to file affidavits or other materials in opposition to the [Secretary's] motion, ” and the court directed Mr. Johnson to the requirements of Appendix II. (Doc. 52). The court warned Mr. Johnson of the consequences of not complying with Rule 56, including that the Secretary's statement of facts may be deemed admitted, the motion for summary judgment may be granted, and judgement entered in the Secretary's favor. (Id. at 2). Nevertheless, Mr. Johnson generally failed to comply with Rule 56 and Appendix II by not “citing to particular parts of materials in the record” or by “showing that the materials cited [by the Secretary] do not establish the absence of a genuine dispute . . . .” Fed.R.Civ.P. 56(c)(1); see also Doc. 56. Consequently, the court does not consider Mr. Johnson's statement of facts that are not supported by any citations to the record, (see Doc. 56 at 5-32), and the court accepts the Secretary's statement of facts as undisputed. But, as it must in considering a motion for summary judgment, the court carefully examined the evidence cited by the Secretary and construes the facts in the light most favorable to Mr. Johnson, the non-movant. See Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012)

         With his brief, Mr. Johnson submitted an unsworn statement from Ray Minter, his former supervisor. (Doc. 56 at 35-39). The court previously explained to Mr. Johnson that “[a]ffidavits must either be notarized or be subscribed as true under penalty of perjury.” (Doc. 52 at 4). Thus, the court cannot and does not consider Mr. Minter's unsworn statement. See Dudley v. City of Monroeville, 446 Fed.Appx. 2014, 2017 (11th Cir. 2011) (“Unsworn statements do not meet the requirements of Rule 56, so the district court could not-and properly did not- rely on the contents of the citizen's [unsworn] statement.”) (citing Carr v. Tatangelo, 338 F.3d 1259, 1273 n.27 (11th Cir. 2003)).

         Against this background, the undisputed material facts, discussed below, demonstrate that summary judgment is appropriate.

         B. Undisputed Material Facts

         Mr. Johnson is employed by the Department of the Army as the Director of Emergency Services at the Anniston Army Depot. (Doc. 44-2 at 5; Doc. 44-8 at 4). In this role, Mr. Johnson oversees the Depot's law enforcement, security, and fire operations. (Doc. 44-8 at 4). His immediate supervisor is the Chief of Staff at the Army Depot. (Doc. 44-4 at 3). Until 2008, Ray Minter was Chief of Staff, and from 2008 to the present, Phil Trued has been the Chief of Staff. (Doc. 44-4 at 3).

         Mr. Johnson's next level supervisor is the Depot Commander. (Doc. 44-4 at 3; Doc. 44-8 at 8). Col. Sherry Keller served as the Depot Commander from August 2007 to August 2010. (Doc. 44-4 at 2).[2] Mr. Johnson, a Caucasian man, asserts that Col. Keller, an African-American woman, discriminated against him on the basis of his race and sex, subjected him to a hostile work environment on the basis of his race, and then retaliated against him when he complained of the discrimination and harassment. (Doc. 21).

         According to Mr. Johnson, Col. Keller's discriminatory actions and harassment began in August 2007 when she became the Depot Commander and continued until she left the Army Depot in August 2010. (Doc. 21 at 2; Doc. 56 at 3). Mr. Johnson complains about a number of alleged discriminatory and retaliatory acts. (Doc. 24-1; Doc. 44-8 at 7). For the sake of clarity, the court will address the alleged discriminatory and retaliatory acts chronologically by category.

         1. Alleged Discriminatory Acts

         a. The July 2007 Letter of Instruction

         In July 2007, one month before Col. Keller became the Commander, Mr. Minter issued a Letter of Instruction (“LOI”) regarding Mr. Johnson's role in handling traffic stops at the Army Depot. (Doc. 44-4 at 94-95). LOIs instruct Army employees about how an individual commander wants certain tasks to be carried out. (Doc. 44-4 at 12, 20). LOIs are not disciplinary in nature, and they are not placed in an employee's personnel file or any other permanent employment record. (Id. at 12; Doc. 44-2 at 30).

         The LOI from Mr. Minter directed Mr. Johnson to call one of his employees to handle a traffic stop if he observed a traffic infraction. (Doc. 44-4 at 94-95). The purpose of the LOI was to remind Mr. Johnson that as a civilian employee, his job responsibilities include “policy guidance, oversight, and leadership in all areas of DES [Department of Emergency Services] operation, ” and that trained uniformed or investigator DES employees who report to Mr. Johnson should carry out all traffic stops on Depot property. (Doc. 44-4 at 94).

         Col. Keller was not involved in issuing the LOI to Johnson. (Id. at 20; Doc. 44-2 at 29-30). Even so, sometime in the fall of 2007, a TACOM[3] employee told Col. Keller that the LOI unreasonably restricted Mr. Johnson's authority. (Doc. 44-4 at 20; Doc. 44-2 at 29-30). Col. Keller did not rescind the LOI because it was issued during the previous command, and LOIs are not presumed to remain in effect after a change of command. (Id. at 20). According to Col. Keller, she did not believe she needed to address the LOI after her discussion with the TACOM employee because she had already implemented her own procedures, and Mr. Minter told her that no action needed to be taken. (Id.). Indeed, at the administrative proceedings, Mr. Minter testified that he did not believe that Col. Keller needed to take any further action on the LOI. (Doc. 44-2 at 30).

         b. The change in command and changes in procedures

         When Col. Keller assumed command of the Army Depot in August 2007, she adjusted certain policies and procedures to reflect her preferences and to update or modernize the operations at the Depot. (Doc. 44-4 at 6). Mr. Johnson contends that some of the changes Col. Keller implemented at DES were directed towards him and discriminatory in nature.

         i. Change in Badge Denial Procedures

         According to Mr. Johnson, he had final authority to deny access, or deny a badge, to the Army Depot before Col. Keller became the Commander, but he concedes that the Commander could override his decision to deny a badge on a case by case basis. (Doc. 44-8 at 11; Doc. 44-2 at 6). In September 2007, a former contractor at the Army Depot, who had applied for a new position at the Depot, contacted Col. Keller to challenge Mr. Johnson's decision to deny him a badge. (Doc. 44-4 at 4; Doc. 44-2 at 6). Col. Keller then contacted Mr. Johnson to request a briefing on access control procedures at the Depot, including the policies and standards for denying access or a badge. (Doc. 44-4 at 4-5).

         After the briefing, Col. Keller decided that Mr. Johnson would send any badge denial decision to the Depot's legal department for a recommendation, and then send the decision and recommendation to her for final approval. (Id. at 5; Doc. 44-2 at 7; Doc. 44-8 at 13). Col. Keller made the change to ensure that badge denial decisions were not arbitrary and to protect the Depot from legal challenges to badge denials. (Doc. 44-4 at 5). The change did not impact Mr. Johnson's authority regarding badge denial decisions because he remained responsible for initial decisions regarding all badge denials, and his decision would remain in place unless Col. Keller reversed it. (See Doc. 44-4 at 5; Doc. 44-8 at 11). After she instituted the change, Col. Keller did not override any of Mr. Johnson's badge denial decisions. (Doc. 44-8 at 13).

         ii. Change in Procedure Regarding the Military Police Blotter

         In October 2007, Col. Keller also reviewed the procedures regarding the distribution of the military police desk blotter, a “daily report of noteworthy events and operations that impacted Depot operations and security . . . .” (Doc. 44-4 at 6-7; Doc. 56 at 114-15). Col. Keller requested that the key portions of the blotter she needed to see be copied from the blotter into a “broader daily report” prepared by members of her staff. (Doc. 44-4 at 6-7; Doc. 56 at 113). Mr. Johnson objected to the change because he believed it was contrary to the applicable regulations regarding distribution of the blotter, and he told Col. Keller that the regulations prohibited him from giving the blotter to Sgt. Major Gregory Williams. (Doc. 44-4 at 7-8; Doc. 56 at 103-07, 115). According to Mr. Johnson, when he informed Col. Keller during a meeting that he could not comply with her request based on the regulations, Sgt. Major Williams and Col. Keller shouted “wrong answer” and became so confrontational that Mr. Johnson asked his subordinates to leave the meeting. (Doc. 44-2 at 8; Doc. 44-8 at 19). Ultimately, Col. Keller withdrew her request to have her staff extract information from the blotter for her, and she asked that the blotter be delivered to her office in a sealed envelope instead of by fax. (Doc. 44-4 at 8; Doc. 44-8 at 17). That change did not impact Mr. Johnson's responsibilities over the blotter. (Doc. 44-4 at 8; Doc. 44-8 at 19).

         c. Investigations, Meetings, and LOIs Relating to Department of Emergency Services (“DES”) Issues

         i. Morale Surveys and Sensing Sessions

         Soon after Col. Keller assumed command of the Army Depot, the TACOM Inspector General (“IG”) informed her of some complaints from DES employees and that he was in the process of setting up a “sensing session, ” or morale survey for the employees. (Doc. 44-4 at 3-4, 9). The IG sent the survey to DES employees in October 2007. (Id. at 28). Col. Keller did not make the decision to issue the survey, and the IG did not consult her about the questions to include in the survey. (Id. at 9). Based on the survey results, the IG found “significant climate concerns” at DES and recommended following up with focused feedback sessions and developing a strategy to address major concerns, including by forming a climate focus group for DES. (Id. at 10, 41). To address the IG's recommendations, Col. Keller considered implementing a “communications forum” to give DES employees an opportunity to be heard on a variety of issues, and she sent an email to Depot employees, including Mr. Johnson, asking for feedback on the idea. (Doc. 44-4 at 10, 43). Col. Keller decided not to conduct the communications forum, and instead, she held an in-person “sensing session” with DES employees in early 2008. (Id. at 10-11).

         ii. The 15-6 Investigations

         In addition, shortly before Col. Keller became Commander at the Army Depot, the previous Commander initiated an investigation into the Depot's fire department, and DES was the subject of a union allegation related to an employee's suicide. (Doc. 44-4 at 3-4; Doc. 44-8 at 56). The resulting investigation under Army Regulation 15-6 did not begin until after Col. Keller became Commander at the Depot. (Doc. 44-8 at 56; Doc. 44-4 at 12-13, 64). Col. Keller appointed Darrell Brewer to lead the investigation. (Doc. 44-4 at 13). Col. Keller initiated a second “15-6 investigation” of DES in January 2008 after receiving a directive to do so from TACOM. (Id. at 12; see also doc. 15 at 62-63). Specifically, TACOM directed Col. Keller to investigate issues identified through IG complaints and the IG's morale survey, including issues related to Mr. Johnson's distribution of overtime hours. (Doc. 44-4 at 12; Doc. 15 at 62-63). Col. Keller appointed Emma Wilson to lead that investigation. (Doc. 44-4 at 12, 53, 58).

         Col. Keller did not direct the 15-6 investigations, but she accepted the findings and recommendations from the investigations because she believed that Mr. Brewer and Ms. Wilson complied with Army Regulation 15-6, which requires that “the investigating officer must ‘ascertain and consider the evidence on all sides of an issue' and ‘be thorough and impartial.'” (Id. at 13, 79). TACOM also reviewed the scope and findings of the investigations, and requested updates from Col. Keller on actions taken to address issues identified in the investigations. (Id. at 13).

         iii. Meetings about Employee Concerns

         In late January 2008, Col. Keller received a letter from LaToya Colston-Jackson, a DES employee, about issues related to a requested job transfer and her shifts at the Army Depot. (Doc. 44-4 at 85-87). Ms. Colston-Jackson alleged that she had been asking Mr. Johnson for help for more than a year without any results. (Id. at 87). Col. Keller approached Mr. Johnson about the situation to use it as a specific example of the type of issues raised in the sensing sessions. (Id. at 15). During a meeting between Col. Keller, Mr. Johnson, and Ms. Colston-Jackson to address the issue, Col. Keller accused Mr. Johnson of showing “poor leadership.” (Doc. 44-8 at 20-21). According to Mr. Johnson, he had been working to accommodate Ms. Colston-Jackson's needs and concerns, and Col. Keller was not ...

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