Opinion
CASE NO. 00-3601-CIV-SEITZ/GARBER
March 13, 2002
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE is before the Court on Defendant's Motion for Summary Judgment [D.E. No. 69]. Plaintiff Marie Kent ("Kent") filed suit against the City of Homestead ("City") for alleged acts of retaliation and race discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), and the Florida Civil Rights Act of 1992, Fla. Stat. § 760.10 ("FCRA"). Defendant contends that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law with respect to Plaintiffs retaliation claims. Kent, however, maintains that the retaliatory conduct complained of presents questions of fact for a jury to decide. For the reasons stated below, the Court grants Defendant's Motion for Summary Judgment.
As a preliminary matter, it appears based upon the pleadings submitted in this case, that Plaintiff has abandoned her race discrimination claim. Not only is there no mention of such claim anywhere in the summary judgment briefs, but such is also not addressed in the Joint Pretrial Stipulation.
BACKGROUND
This case arises out of Officer Marie Kent's nearly two decade employment relationship with the City of Homestead Police Department (the "Department"). More specifically, this case concerns Kent's repeated attempts during the last five years of that relationship to elevate herself through the ranks of the Department. Although her efforts have been unsuccessful, all evidence indicates that Kent was, and still is, an outstanding police officer. Thus, notwithstanding the outcome of this lawsuit, the Court is hopeful that Kent will continue to perform her job at the highest level.
Kent has been a sworn uniformed police officer since approximately 1985. Prior to that, Kent worked as a police dispatcher for two years.
In fact, Alexander Rolle, the current Chief of Police and former major, indicates that Kent received the highest possible evaluation for each period during the operative time of this lawsuit. (Rolle Aff., ¶ 3). More telling, however, is Rolle's proclamation that, if a vacancy arose, he "would not hesitate to promote Marie Kent." (Rolle Aff., ¶ 6).
Kent's employment relationship with the City, and more specifically, her efforts to be promoted within the Department are governed by the Collective Bargaining Agreement ("CBA") between the City and the Police Benevolent Association. Pursuant to the CBA, officers seeking promotion must take a promotional examination, which is periodically administered by the Department. Officers that take the exam are placed on an eligibility list that ranks them in order of their scores which they received on the exam. The eligibility list is valid for one year and all promotions during that year must be made by the Chief of Police based upon the eligibility list.
Pursuant to the CBA, the process for promoting off of the eligibility list utilizes the "rule of three." This "rule" provides that as vacancies appear for various ranks, the Chief of Police chooses from among the top three candidates on the eligibility list for that specific rank. The candidates need not be promoted strictly according to their ranking on the eligibility list; but rather, provides that the Chief of Police consider the following criteria: (1) demonstrated past performance; (2) leadership ability; (3) seniority in the department; and (4) seniority in the law enforcement profession.
In May 1995, Kent participated in the Sergeant's promotional exam. Upon completion of her exam, Kent, who is Caucasian, and a number of other police officers complained that the exam was racially biased in favor of two African-American candidates. Specifically, Kent, assuming the role of leader of the complaining officers (Kent Aff., ¶ 8), alleged that the oral portion of the exam was administered in a fashion that favored the two African-American officers. (Kent Aff., ¶ 5). Notwithstanding Kent's vocal objections, the exam was deemed valid and four officers were subsequently promoted off of the 1995-96 eligibility list, including one of the two African-American candidates that Kent claimed to have benefitted from the allegedly tainted exam.
Angela Staggers was promoted to Sergeant during October 1995, at which point she became Kent's direct supervisor. Over the next ten months, Kent alleges that Staggers subjected her to verbal harassment and to a hostile work environment. (see infra). Also of note is that Kent's husband, Kevin Kent, was also promoted to Sergeant.
On July 18, 1996, after Kent concluded that she had exhausted her administrative remedies pertaining to her complaints about the exam, she filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging discrimination with respect to the promotional exam. On February 18, 1997, after investigating the allegations, the EEOC issued Kent a "Right to Sue" letter. Kent, however, opted not to pursue the matter in court.
Although she never pursued her action in court, Kent alleges that she was retaliated against for filing a Charge of Discrimination with the EEOC. Specifically, Kent alleges that the City took the following retaliatory actions: (1) not promoting Kent to Sergeant after the 1997 promotional exam; (2) not promoting Kent to Sergeant after the 1998 promotional exam; (3) initiating an Internal Affairs investigation of Kent in 1998; (4) not calling Kent for meetings of the Accident Review Board during July and August 1996; (5) transferring Kent out of the Community Affairs bureau in October 1997; (6) changing Kent's days off during October 1997 and July 1998; (7) not being appointed acting Sergeant during 1999; and (8) subjecting Kent to verbal harassment and hostile working conditions from 1996 through 1999.
Failure to Promote in 1997 and 1998
Kent completed the Sergeant's promotional exam in May 1997, and based upon her score, was number one on the resulting eligibility list. As a result, and due to the recent resignation of a Sergeant from within the Community Affairs bureau, Kent implies that her promotion should have been a virtual certainty. (Kent Aff., ¶ 16). Kent was not promoted. Instead, due to a purported financial crisis, the vacancy in the Sergeant ranks remained unfilled throughout the entire effective period of the 1997-98 eligibility list. (Ivy Aff., ¶¶ 6-9). Kent contends that the City's financial reasons for not promoting her were pretextual. The City, however, maintains that the financial crisis was real and that the resulting instability precluded any promotions at that time. (Ivy Aff., ¶ 11).
The eligibility list was in effect from May 23, 1997 through May 23, 1998.
Indeed, the Sergeant's position in the Community Affairs bureau was eliminated altogether by the 1998-99 budget. (Rolle Aff., ¶ 24).
In November 1998, Kent participated in yet another Sergeant's promotional exam. This time, Kent's score on the exam placed her fourth on the eligibility list. All three officers ahead of her on the list were promoted. As Kent correctly points out, when the first of these was promoted, Kent became one of the top three and within the "rule of three" for eligibility purposes. Thus, even though Kent's score on the exam placed her behind the remaining two officers on the list, the "rule of three" provided that she could have been promoted before either of them. Kent alleges that under a fair evaluation of the criteria provided for by the "rule of three," she should have been promoted during the 1998-99 eligibility period. (Kent Aff., ¶ 18). The City, however, contends that while the Chief does have discretion under the CBA to promote any of the top three candidates on the eligibility list, the City's general practice is to promote in the order of the eligibility list, absent special circumstances. (Ivy Aff., ¶ 11).
Initiation of Internal Affairs Investigation
On September 16, 1998, a couple of months before the promotional exam, Kent learned that she was the subject of an ongoing Internal Affairs investigation for alleged misconduct. Specifically, Kent was being investigated for giving misleading and inaccurate information to the Department dispatcher regarding her whereabouts, and artificially extending her time spent on work related calls so as to avoid other work. (Rolle Aff., ¶¶ 7-10). The Department's internal report concluded, inter alia, that Kent spent extended periods of work time at home and gave the dispatcher inaccurate information as to her location. (Rolle Aff., ¶ 12).
As a result, Kent was potentially disqualified from even being considered for promotion, because pursuant to the CBA, a candidate for promotion can be passed over if: (1) on probation; (2) under investigation; or (3) on suspension. (Kent Aff., ¶ 20). Thus, according to Kent, the investigation, which she claimed was premised on mere rumor and gossip, provided a convenient method of ensuring that Kent did not get promoted to Sergeant. (Kent Aff., ¶ 20). The City, however, maintains that such is mere speculation and that the real reason for Kent not being promoted is that she was ranked fourth and there were only three available positions. (Def's Reply at 9).
To bolster her argument, Kent points to the decision of the neutral arbitrator, William Lambert, who concluded that "the City rushed to hold an Internal Affairs investigation . . . and that [the City] owed [Kent] the duty of progressive discipline." (Arbitration Decision of William M. Lambert, Feb. 5, 2001, at 20).
The panel of senior officers who reviewed the internal investigation report recommended that Kent be suspended for sixty days. Kent alleges that one of the officers on this panel, Captain Joe Villaronga ("Villaronga"), pressed the other members (unsuccessfully) to recommend firing Kent because of her complaints regarding the 1995-96 promotional exam. (Rea Aff., ¶ 6). The recommended penalty was subsequently reduced by the Chief to forty-five days and thereafter upheld by the City Manager. Pursuant to the CBA, Kent requested binding arbitration before a neutral arbitrator. On February 5, 2001, after concluding that both parties were somewhat at fault, the suspension was reduced to twenty days and the City was ordered to pay Kent for the twenty five day difference. (Arbitration Decision of William M. Lambert, February 5, 2001, at 21-22).
Chief Rolle states that he reduced the suspension to forty five days in light of Kent's record with the Department and in light of punishments recently handed down to two other officers for similar offenses. (Rolle Aff., ¶ 13).
Retaliatory Harassment
In addition to being denied a promotion and targeted in an Internal Affairs investigation, Kent also claims that, in retaliation for filing a Charge with the EEOC, she was subjected to verbal harassment and forced to endure a hostile work environment. She contends that such retaliatory conduct commenced when she first complained about the promotion exam in September 1995, and continued through October 1999. (Kent Aff., ¶ 11). As to the specific type of harassment, Kent claims that it ranged from verbal abuse to schedule adjustments to assignment alteration to disparate discipline. (Kent Aff., ¶ 12).
On July 18, 1996, the same day on which she filed her initial Charge of Discrimination with the EEOC, Kent was appointed to the Accident Review Board. Members of the Accident Review Board do not receive any additional pay, compensation or direct benefit for their service. Nonetheless, Kent alleges that service on the Review Board figures into the promotion equation because, pursuant to the CBA, the City must consider "demonstrated past performance and leadership abilities." (Pl's Rule 7.5 Resp. at 7). According to Kent, during her first two weeks of service on the Review Board, she attended approximately three meetings. After that, however, Kent claims to have been purposefully excluded from meetings of the Review Board. (Kent Aff., ¶ 15). She alleges that her exclusion from meetings coincided with the time when her complaint to the EEOC became public knowledge within the Department.
According to the Complaint, Kent's allegations of direct retaliatory harassment from fellow officers actually predates the filing of her complaint with the EEOC. Indeed, Kent alleges that such harassment dates back to October 1995, five months after she first informally complained about the Sergeant's promotional exam. It was then, that Officer Angela Staggers ("Staggers"), one of the African-American officers that Kent accused of receiving favorable treatment on the Sergeant's promotional exam, became Kent's direct supervisor. Thereafter, Kent claims that Staggers subjected her to verbal abuse and a hostile work environment. Specifically, Kent claimed that "[Staggers] scrutinized my reports more closely than anyone else, called me back to the station to fill in a blank entry, belittled me and just overall created harder working conditions and a hostile work environment for me." (Kent Aff., ¶ 13). In addition, Kent claims that she was forced to resign as the "hit and run" investigator and eventually, after unsuccessfully complaining to a higher ranking officer, forced to transfer out of Staggers' shift. (Kent Aff., ¶ 13). Then, even after being transferred to the Community Affairs bureau, Kent claims that Staggers still "continued the same type of conduct on off duty details." (Kent Aff., ¶ 13).
From October 1996 until October 1997, Kent, per her own request, was assigned to the Community Affairs bureau, where she was under the direct supervision of Captain Ed Bowe ("Bowe"). According to Kent, Bowe treated her worse than the other officers in the bureau. Specifically, Kent claims, inter alia, that: (1) her shift was adjusted on numerous occasions to avoid overtime; (2) she was forced to work on her day-off; (3) her meal times were more closely scrutinized; and (4) she alone was required to submit, and often times resubmit, weekly reports. (Kent Aff., ¶ 14). In October 1997, Kent was removed from the Community Affairs bureau and returned to road patrol. Apparently not content with such a transfer, Kent maintains that such was a retaliatory action. (Compl. ¶ 9(c)). The City, however, maintains that the transfer was necessitated because the grant which funded her position in Community Affairs expired in October 1997. (Bowe Aff., ¶ 4). Moreover, Bowe denies each of Kent's accusations and maintains that he did not retaliate against her in any fashion. (Bowe Aff., ¶ 7). In fact, Bowe maintains that he reviewed and approved numerous evaluations where Kent was evaluated as outstanding.
Kent argues that the City sabotaged the grant that funded her position. (Kent Aff., ¶ 14; see also Pl's Rule 7.5 Resp. at 8).
After being reassigned to road patrol in October 1997, Kent was under the direct supervision of Sergeant Shawn Sinclair ("Sinclair"). Kent claims that Sinclair was verbally abusive and placed her under excessive monitoring. (Kent Aff., ¶ 19). According to Kent, Sinclair's abusive actions occurred between October 1997 and June 1998. (Kent Aff., ¶ 19). In addition, Kent claims that after being reassigned to road patrol, she was denied the opportunity, pursuant to her seniority, to have first choice of days off. The City, however, maintains that because days off are selected according to seniority on a quarterly basis at "shift change," and because Kent was reassigned to road patrol in between "shift changes," she was unable to select days off for that shift. (Foglia Aff., ¶ 5). Consequently, Kent was required to wait for the next "shift change" in order to select her days off in line with her seniority.
In July 1998, as a result of a non-work related back injury, Kent was given an administrative light duty assignment. (Foglia Aff., ¶ 7; Kent Aff., ¶ 19). Thus, because Kent was a former dispatcher, she was assigned to cover dispatcher shifts, which coincidentally, placed her under the direct supervision of her husband, Sergeant Kevin Kent. In an apparent breach of customary practice, Sergeant Kevin Kent granted his wife the first choice of days off within the dispatcher section. As expected, Kent selected Friday and Saturday, and as equally expected, numerous other dispatchers, who were precluded from selecting such prized days off; complained up the chain of command. Consequently, Lieutenant Foglia directed Captain Villaronga to modify Kent's days off. (Foglia Aff., ¶ 11-12). Kent claims that Foglia's and Villaronga's actions were retaliatory in nature. (Compl., ¶ 9).
Light duty assignment is a practice where the City accommodates, where practicable, an officer's desire to continue working while temporarily unable to perform regular duties. (Foglia Aff., ¶ 8). When an officer is assigned to administrative light duty, the Department has the right to assign the officer wherever she is needed and there is no requirement that the officer be allowed to select days off in accordance with her seniority. (Foglia Aff., ¶ 9).
Kent also alleges that the City retaliated by not assigning her the temporary acting Sergeant position on several occasions during 1999. (Compl., ¶ 9(f)). The Department occasionally appoints a patrol officer as an acting Sergeant on a particular shift where, because of an absence, there is only one Sergeant available on the shift. (Foglia Aff., ¶ 13). As a matter of practice, appointment as an acting sergeant does not entitle an officer to additional wages or benefits and does not affect an officer's chances of promotion. (Foglia Aff., ¶ 14).
Specifically, Kent claimed during her deposition that there were four instances during 1999 (February 18, March 4, 9, and 25) when she should have been appointed acting Sergeant, but was not. (Kent Depo., at 249-253).
Morning and afternoon shifts are supposed to be staffed by two Sergeants and one Lieutenant. (Foglia Aff., ¶ 13).
Procedural History
On February 8, 1999, Kent filed a Charge of Discrimination with the EEOC on which the instant case is based. Approximately sixteen months later, on June 29, 2000, the EEOC issued a Notice of Right to Sue. On September 27, 2000, Kent filed her complaint in this Court seeking the following relief: (1) promotion to Sergeant with retroactive seniority; (2) back pay with benefits; (3) a declaratory judgment that the City's practices violate Title VII and the FCRA; (4) an injunction against further illegal practices; (5) compensatory damages; and (6) costs and reasonable attorney fees.
ANALYSIS
A. Standard of Review for Summary Judgment
Summary judgment is appropriate when "the pleadings . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Once the moving party demonstrates the absence of a genuine issue of material fact, the non-moving party must "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting FED. R. Civ. P. 56(e)). Accepting this evidence as truthful, the Court must view the record and all factual inferences therefrom in the light most favorable to the non-moving party and decide whether "`the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quoting Anderson, 477 U.S. at 251-52).
B. Time-Barred Claims
Ordinarily, a charge of discrimination must be filed with the EEOC "within one hundred and eighty days after the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e)(1). This period, however, may be extended to 300 days if the complainant lives in a deferral state, such as Florida, and first files a timely charge with the appropriate state or local agency. Id. A plaintiffs failure to file a timely charge of discrimination with the EEOC, pursuant to § 2000e-5(e)(1), renders that claim time-barred. See Beavers v. American Cast Iron Pipe Co., 975 F.2d 792, 796-97 (11th Cir. 1992).
Deferral states are those that prohibit the unlawful employment practice at issue and have established state or local authorities to grant or seek relief for such practice. See Section 706(c) of Title VII, 42 U.S.C. § 2000e-5(c).
Title VII's statutory limitation period begins when notice of the adverse action is given, not on the date when the consequences of the action actually take effect. See Delaware State Coll. v. Ricks, 449 U.S. 250, 258 (1980).
Kent filed a Charge of Discrimination with the EEOC on February 8, 1999. Therefore, all of Kent's claims arising more than 300 days prior to February 8, 1999 (i.e. April 14, 1998) are time-barred under Title VII. Accordingly, the City argues that Kent's retaliation claims based on: (1) being subjected to a hostile work environment by Sergeant Staggers from October 1995 through October 1996; (2) being removed from the Accident Review Board in 1996; (3) being subjected to a hostile work environment by Captain Ed Bowe from October 1996 through October 1997; (4) being transferred out of Community Affairs in October 1997; (5) not being promoted after the May 1997 promotional exam;(6) being subjected to a hostile work environment by Sergeant Sinclair up through April 14, 1998; and (7) having her days off changed in October 1997, are all time barred. In response, Kent makes two arguments: (1) with regard to the 1997 promotional exam, the limitations period did not begin to run until the eligibility list expired on May 23, 1998; and (2) with regard to the remaining allegedly time-barred claims, they are timely pursuant to the "continuing violation" doctrine.
not explicitly stated anywhere in the pleadings, both parties concede, at least tacitly, that Kent initially filed a charge of discrimination with the appropriate state or local agency, thus enlarging the applicable statutory period to 300 days.
Pursuant to FCRA, Kent is statutorily barred from pursuing all claims arising more than 365 days prior to February 8, 1999 (i.e. February 8, 1998). Fla. Stat. § 760.11.
1. 1997 Promotional Exam
It is well settled law in this circuit that "the time for filing an EEOC charge begins to run when the employee receives unequivocal notice of the adverse employment decision." Grayson v. K Mart Corp., 79 F.3d 1086, 1100 n. 19 (11th Cir. 1996) (citation omitted). Here, the relevant adverse employment decision was Kent not being promoted after the May 1997 promotional exam. In the context of this case, Kent could only receive unequivocal notice of such a decision in one of two ways: (1) when the sole vacancy in the Sergeant ranks was filled by another candidate see Wislocki-Goin v. Mears, 831 F.2d 1374 (7th Cir. 1987) (finding that period of limitations for filing with the EEOC began to run on date that vacancy was filled by another candidate); or (2) the operative eligibility list expired without Kent being promoted. The former never occurred and the latter occurred on May 23, 1998, well within the statutory period for Kent's complaint.
The City suggests that, during the summer of 1997, Kent received unequivocal notice that she was not being promoted. In support of this contention, the City points to two portions of Kent's deposition testimony, neither of which supports its argument. First, as support for the claim that Kent admitted she was aware in May or June 1997 that she would not be promoted, the City directs the Court to page 40 of Kent's deposition transcript. A careful and thorough review of the testimony on page 40, however, reveals no mention, much less an admission, that Kent held such a belief.
Indeed, page 40 does not even pertain to Kent's claims regarding the 1997 promotional exam. Nonetheless, in an abundance of caution, the Court also scanned the surrounding pages, none of which proved relevant to the City's argument.
The City then directs the Court to page 101 of Kent's deposition transcript to support its claim that "she received unequivocal notice of [not getting promoted] and formed the belief that it was retaliatory prior to July 1997." (Def.'s Reply at 6). Presumably, the City relies on Kent's affirmative answer to counsel's question, "At least by July of 1997 you believed that the reason you weren't getting promoted was because of retaliation?" (emphasis added). While Kent's affirmative answer certainly is indicative of her own belief; such is far from meeting the standard of unequivocal notice. While Kent could have suspected during the summer of 1997 that she was not going to be promoted, she could not have known for certain, and thus received unequivocal notice, until the eligibility list expired in May 1998. See Nealey v. University Health Services, Inc., 114 F. Supp.2d 1358, 1366 (S.D. Ga. 2000). Moreover, the preceding portion of the deposition testimony indicates that Kent is unsure of the specific date on which she became aware that she was not getting promoted due to alleged retaliation. (Kent Dep., 100-101). Accordingly, because Kent could not have received unequivocal notice of not getting promoted until May 1998, her claim for failure to be promoted after the 1997 promotion exam is timely.
2. Continuing Violation Doctrine
Under the continuing violation exception, otherwise time-barred claims are actionable if they are part of a pattern or continuing practice of discrimination which extends into the statutory filing period. Roberts v. Gadsden Memorial Hospital, 835 F.2d 793, 800 (11th Cir. 1988). The Eleventh Circuit, however, cautioned that "[t]he continuing violation doctrine does not exist to provide a `second chance' to an employee who allowed a legitimate claim to lapse." Carter v. West Publishing Co., 225 F.3d 1258, 1264 (11th Cir. 2000) (citations omitted). It is only when a substantial nexus exists between a timely-filed claim and an otherwise time-barred claim that they may be viewed as constituting a single violation. Roberts, 835 F.2d at 800; see also United Airlines v. Evans, 431 U.S. 553 (1977) (concluding that the claim "must be part of a pattern or a continuing practice out of which the timely-filed incident arose"). The plaintiff has the burden of "proving the existence of a substantial nexus between the acts." Id., (citing Milton v. Weinberger, 645 F.2d 1070, 1077 (D.C. Cir. 1981).
In determining the existence of a substantial nexus, a court should refer to a variety of factors, including whether the claims were related in subject matter, frequency and permanence (i.e. whether the act was sufficiently permanent in nature so as to trigger the employee's awareness that her civil rights had been violated). Roberts, 835 F.2d at 800. Kent alleges radically different acts, by independent and unrelated actors, occurring intermittently over a period of nearly five years. For example, Kent's being removed from the Accident Review Board in 1996 and having her days off changed in 1998 are related in neither fact nor effect. In addition, the potential amount of players involved in this purported series of events weighs heavily against a finding that such was the product of a Department-wide policy or practice. Moreover, as the Supreme Court noted, mere commonality of effect is not sufficient to invoke the continuing violation doctrine. See United Air Lines, 431 U.S. at 553 (citations omitted).
Kent has not alleged that there is a substantial nexus between the discriminatory acts which allegedly occurred prior to April 14, 1998, and those that occurred on or after April 14, 1998. Moreover, Kent apparently concedes that all Title VII claims arising prior to April 14, 1998, are time-barred, as she did not dispute, much less respond to, Defendant's argument on this point. Consequently, the only claims in the Complaint that are not time-barred under Title VII are Kent's allegations pertaining to: (1) not being promoted to Sergeant after the 1997 promotional exam; (2) not being promoted to Sergeant after the 1998 promotional exam; (3) being the subject of an Internal Affairs investigation in 1998; (4) having her days off changed while on administrative light duty during July 1998; (5) not being appointed acting Sergeant during 1999; and (6) being subjected to verbal harassment and a hostile working environment from April 1998 through October 1999. Below, the Court examines each of these claims.
C. Retaliation
A Title VII retaliation claim can be supported by direct or indirect evidence. See Merritt v. Dillard Paper Co., 120 F.3d 1181 (11th Cir. 1997); Donnelon v. Fruchauf Corp., 794 F.2d 598 (11th Cir. 1986). Kent claims that she can prove retaliation through both means. If Kent, as non-movant, "presents direct evidence that, if believed by a jury, would be sufficient to win at trial, summary judgment is not appropriate even where the movant presents conflicting evidence." Mize v. Jefferson City Bd. of Education, 93 F.3d 739, 742 (11th Cir. 1996). Thus, in opposing the City's motion, Kent puts forth the following "direct" evidence: that Chief Ivy, after the results of the 1997 promotional exam were posted, told Kent that "in his opinion there were not going to be any promotions at this time" and that he did not consider Kent a "team player." (Kent Aff., ¶ 16).
Direct evidence of retaliation is evidence which, if believed, "establishes the existence of discriminatory intent behind the employment decision without any inference or presumption." Carter v. City of Miami, 870 F.2d 578, 581-82 (11th Cir. 1989) (emphasis added). Moreover, to be considered direct evidence, a statement must: (1) be made by a decisionmaker; (2) specifically relate to the challenged employment decision; and (3) reveal blatant discriminatory animus. Chambers v. Walt Disney World Co., 132 F. Supp.2d 1356, 1364 (M.D. Fla. 2001). Even assuming, arguendo, that Ivy's statement meets the first two prongs, it does not reveal a blatant discriminatory animus. Ivy's alleged statement is susceptible to a number of interpretations, several of which are consistent with a non-retaliatory motive. In fact, the most obvious interpretation is that Kent was not promoted because she was not a "team player," not because of discriminatory animus. Accordingly, because such could be construed as direct evidence of a nondiscriminatory motive, the Court finds that the evidence put forth by Kent does not constitute true direct evidence of retaliation.
To prove retaliation through circumstantial evidence, Kent must clear two hurdles. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, she must establish a prima facie case of retaliation under Title VII. Once she has cleared that hurdle, a presumption of retaliation exists and the City, to rebut that presumption, must clearly articulate "in a reasonably specific manner a legitimate, non-discriminatory reason" for the action. If the City meets its burden, then Kent must persuade the court that the legitimate, non-discriminatory reason is merely a pretext for the true discriminatory intent. See Coutu v. Martin County Bd. of Commissioners, 47 F.3d 1068, 1073 (11th Cir. 1995). Accordingly, the Court will address each of the remaining substantive allegations contained in Complaint under this framework.
Defendant's burden is one of production, not persuasion. Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir. 1997).
To establish a prima facie case of retaliation, Kent must show: (1) that she engaged in statutorily protected activity; (2) that she suffered an adverse employment action; and (3) that there was a causal link between the protected activity and the adverse employment action. Bass v. Board of County Commissioners, Orange County. Fla., 256 F.3d 1095, 1117 (11th Cir. 2001) (citations omitted).
In viewing the evidence in a light most favorable to Kent, it is undisputed that her filing a Charge of Discrimination with the EEOC constitutes "protected activity" for the purposes of a retaliation claim. See id. As to whether Kent suffered an adverse employment action, again viewing the evidence in a light most favorable to Kent, the Court finds that Kent has made such a showing with respect to the following: (1) not being promoted after the 1997 promotional exam; (2) not being promoted after the 1998 promotional exam; and (3) being subjected to an Internal Affairs investigation in 1998. With respect to the remaining timely claims, however, such actions do not rise to the level of adverse employment action.
Ordinarily, an adverse employment action is an "ultimate employment decision, such as discharge or failure to hire, or other conduct that alters the employee's compensation, terms, conditions, or privileges of employment, deprives him or her of employment opportunities, or adversely affects his or her status as an employee." Bass, 242 F.3d at 1014 (quoting Gupta v. Florida Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000)). In the context of retaliatory discrimination, however, Title VII's protection extends to adverse actions which fall short of ultimate employment decisions. Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1998). Nonetheless, not all conduct by an employer negatively affecting an employee constitutes adverse employment action. Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1238 (11th Cir. 2001) Wideman, 141 F.3d at 1456 ("there is some threshold level of substantiality that must be met for unlawful discrimination to be cognizable"). Accordingly, after careful review, the Court concludes that, even under the broadened definition of adverse employment action, the following actions by the City do not rise to the requisite level: (1) changing Kent's days off in 1998; (2) not being appointed acting Sergeant in 1999; and (3) the alleged general harassment that Kent was subjected to from April 1998 on.
Even assuming, arguendo, that the first two of these actions were cognizable, the City has, nevertheless, presented a legitimate, non-discriminatory reason for each, and Kent can not prove that such reason is a pretext. ( See discussion, supra at 8).
Kent has also not provided sufficient evidence to establish a causal link between her protected activity and any of the City's actions. The extended time period that elapsed between Kent's complaint to the EEOC and the alleged (timely) adverse employment actions, belies her assertion that the former caused the latter. Maniccia v. Brown, 171 F.3d 1364, 1370 (11th Cir. 1999). The first arguably actionable employment decision, after filing her charge, was the failure to promote Kent after the 1997 exam. Besides speculation, conjecture, and ambiguous evidence, Kent has presented no concrete evidence of a causal connection between that decision and the protected activity. Therefore, having failed to establish a causal link with even the decision closest in time to the protected activity, the City is entitled to summary judgment on Kent's retaliation claims.
Moreover, even assuming, arguendo, that Kent is able to establish a prima facie case of retaliation, the City has offered legitimate, nondiscriminatory reasons for each of its actions to negate the inference of retaliation. (see infra). Thus, because the City has established legitimate, nondiscriminatory reasons for its actions, Kent has the burden of proving by a preponderance of the evidence that the reasons offered by the City are pretextual. See Donnellon, 794 F.2d at 601 (citation omitted). As shown below, each of the City's actions was done for legitimate, non-retaliatory reasons.
1. Not Being Promoted to Sergeant After the 1997 Promotional Exam
Neither Kent, nor any other officers, were promoted following the 1997 promotional exam. In addition to denying that there was any retaliation, (Ivy Aff., ¶ 10), the City also proffers a legitimate, nondiscriminatory reason for its actions. Specifically, the City contends that there was a financial crisis and resulting budget shortfall that precluded it from making any promotions whatsoever (Def.'s Mot at 16; Ivy Aff., ¶ 9).
Kent argues that the City's reason was a mere pretext for its true discriminatory motive. Kent does not dispute that there was a financial crisis. Rather, she challenges the way in which the City dealt with such crisis. In support of her argument, Kent presents a litany of evidence to show that the City spent more money on overtime covering for the vacant Sergeant position, than if it had simply promoted Kent. Even assuming that Kent's micro-economic analysis of the City's financial plan is valid, such does not further her argument. While Kent's evidence may be probative of poor financial management, it does not establish that such was a pretext for retaliating against Kent.
2. Not Being Promoted to Seraeant After the 1998 Promotional Exam
With respect to the promotions after the 1998 exam, the City proffers that its reason for not promoting Kent is that there were three vacancies at the Sergeant position and accordingly, the first three officers on the eligibility list were promoted. In addition to being a legitimate and non-discriminatory reason why Kent was not promoted, it is also straightforward and logical. Kent, however, disagrees with the City's method and argues that such was a mere pretext for its true discriminatory intent.
It is undisputed that Kent was fourth on the eligibility list.
In support of this contention, Kent argues that after the first promotion was handed down, she was within the "rule of three" for eligibility purposes and thus, eligible for promotion at any time. Accordingly, Kent argues that under the "rule of three" criteria, she should have filled one of the remaining two positions. Once again, while Kent's argument may be probative of poor judgment on the part of the City, it does not establish that the City's decision not to promote was retaliatory in nature. To the contrary, the City proceeded in the manner that most persons would consider to be fair. As opposed to relying upon "rule of three" criteria, which are subjective in nature and thus, open to differing interpretations, the City, as is its general practice, proceeded under the more practicable objective criteria.
3. Being the Subject of an Internal Affairs Investigation in 1998
With respect to the Internal Affairs investigation that resulted in disciplinary action, the City claims that such was brought on by Kent's own actions. In support, the City notes that the City Manager and the neutral arbitrator both found substantial evidence of Kent's misconduct. See Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1331 (11th Cir. 1999) (finding that causal link between discriminatory animus and adverse employment action was broken by a civil service hearing). In response, Kent essentially claims "double pretext."
Kent has presented no evidence that either the City Manager or the neutral arbitrator possessed a retaliatory motive.
First, Kent claims that the investigation itself was a pretext for disqualifying Kent from being considered for promotion. As noted above, however, the City could, and did, deny Kent a promotion based on the fact that she was fourth on the eligibility list. Thus, the City has already carried its burden with respect to this first assertion of pretext. Next, Kent claims that the Arbitrator's conclusion that the City "rushed to hold an Internal Affairs investigation" is evidence of pretext. Yet again, however, Kent presents evidence of poor judgment, but not of retaliatory motive. To fully support a finding of pretext, Kent needs to present evidence that the investigation and resulting discipline had no basis in fact. The arbitrator did not absolve Kent of wrongdoing. Rather, he found that some of her explanations and excuses were not sufficient to explain or justify her actions. Accordingly, whereas a neutral fact-finder concluded that the City's investigation and subsequent discipline had a basis in fact, the Court must conclude that such was not a pretext for retaliation.
Because the City has articulated legitimate, nondiscriminatory reasons for its actions, the burden shifts to Kent to provide some evidence that the City's reasons were a pretext for retaliation based upon protected activity. Because Kent has not done so, the Court grants the City's motion for summary judgment. Accordingly, it hereby
In Combs v. Plantation Patterns, the Eleventh Circuit held that "once a plaintiff has established a prima facie case and has put on sufficient evidence to allow a factfinder to disbelieve an employer's proffered explanation for its actions, that alone is enough to preclude entry of judgment as a matter of law." 106 F.3d 1519, 1532 (11th Cir. 1997). However, because Kent has not provided any evidence that the City's reasons for its actions are false or unworthy of belief; the Court finds that summary judgment is appropriate.
ORDERED that Defendant's Motion for Summary Judgment is GRANTED and this case is CLOSED. Any pending motions are DENIED as moot.