Duncan v. State of Alabama, et Al.

REPLY BRIEF re Response in Opposition to Motion for Summary Judgment

M.D. Ala.March 31, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION JANICE DUNCAN, ) ) Plaintiff, ) ) v. ) CIVIL ACTION NO. ) 2:15-cv-419-WHA-GMB STATE OF ALABAMA, STATE OF ) ALABAMA DEPARTMENT OF ) TRANSPORTATION, BILL ) FLOWERS, in his individual capacity, ) and KELLY BRENDLE, in her ) individual capacity, ) ) Defendants. ) DEFENDANTS’ REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Pursuant to Federal Rule of Civil Procedure 56(a), Defendants the State of Alabama, the Alabama Department of Transportation (“ALDOT”), Bill Flowers (“Flowers”), and Kelly Brendle (“Brendle”)1 filed a properly supported motion requesting judgment as a matter of law on all claims in this action. Janice Duncan (“Duncan”), through her counsel, has advanced arguments in opposition to Defendants’ motion. Defendants contend that nothing in Duncan’s response establishes that summary judgment is inappropriate and offer this reply to Duncan’s response. INTRODUCTION Sometimes even long-term employees with unblemished disciplinary histories engage in conduct so egregious that an employer must take effective disciplinary action. While Duncan has attempted to recast such events as discrimination or retaliation, her attempts lack either evidentiary or legal foundation. Duncan’s demotion and the other events about which she complained simply 1 This brief refers to the State of Alabama, ALDOT, Flowers, and Brendle collectively as “Defendants.” Case 2:15-cv-00419-WHA-GMB Document 57 Filed 03/31/17 Page 1 of 33 2 cannot be characterized as discriminatory or retaliatory. Thus, Defendants are entitled to summary judgment. In 2013, Brendle and Flowers received concerning complaints about Duncan’s conduct from her subordinates, many of whom, like Duncan, are African-American.2 Flowers sought instruction from the Deputy Director for Administration at ALDOT, Lamar S. Woodham, Jr. (“Woodham”). Woodham suggested that an experienced supervisor with a background in personnel investigation should investigate. In early July of 2013, Maxine Wheeler (“Wheeler”) interviewed Duncan and her subordinates. Wheeler’s report and recommendation concluded that Duncan had failed to perform her job properly, engaged in disruptive conduct, used abusive and threatening language with subordinates, and engaged in insubordination. Wheeler reached these conclusions without influence from Flowers or Brendle and based them on her fact-finding interviews, her experience as a supervisor, and her knowledge of applicable work rules. Wheeler’s report persuaded Flowers and Brendle that it would be appropriate to offer Duncan evaluation through the EAP program and to recommend that ALDOT demote Duncan out of her supervisory position. ALDOT vetted the recommendation through its EEO compliance procedures. Flowers advised Duncan of the recommendation regarding the demotion and the reasons for it. ALDOT provided the hearing Duncan requested in accordance with its procedures. DeJarvis Leonard (“Leonard”), a neutral hearing officer with significant supervisory experience in another part of ALDOT’s operations, conducted the hearing. After hearing from Duncan and the other witnesses, Leonard concluded that the recommended demotion was appropriate. Leonard sent his recommendation to the Director’s Office. Woodham reviewed it and made the decision to demote Duncan. Woodham’s decision prompted in this litigation. 2 All facts included in this introduction can be found with proper record citations either in this reply brief or in Defendants initial brief in support of the motion for summary judgment. They are omitted here for the sake of brevity. Case 2:15-cv-00419-WHA-GMB Document 57 Filed 03/31/17 Page 2 of 33 3 ARGUMENT I. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT AS TO CLAIMS OR ARGUMENTS DUNCAN DID NOT ADDRESS IN HER RESPONSE. By her response to Defendants’ summary judgment motion, Duncan implicitly conceded the appropriateness of summary judgment as to claims or arguments she failed to address. Where, as here, a plaintiff fails to respond to a defendant’s properly supported arguments in support of summary judgment on plaintiff’s claims, the court need not formulate arguments for the plaintiff based on the facts presented and deny summary judgment, but may instead deem the claims abandoned and grant summary judgment. There is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment; the onus is on the parties to formulate arguments. See, e.g. Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995), cert. denied, 516 U.S. 817 (1995) (“[t]here is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment”); Blue Cross & Blue Shield of Ala. v. Weitz, 913 F.2d 1544, 1550 (11th Cir. 1990), reh’g denied, 921 F.2d 283 (11th Cir. 1990); Keel v. U.S. Dep’t of Air Force, 256 F. Supp. 2d 1269, 1279 n.27 (M.D. Ala. 2003); Thomas v. Ala. Council on Human Relations, Inc., 248 F. Supp. 2d 1105, 1107 n.1 (M.D. Ala. 2003); Chase v. Kawasaki Motors Corp., U.S.A., 140 F. Supp. 2d 1280, 1286 (M.D. Ala. 2001). “[I]t is not for the court to manufacture arguments on Plaintiff’s behalf.” Humphrey v. City of Headland, No. 1:12-cv-366- WHA, 2012 WL 2568206, at *2 (M.D. Ala. July 2, 2012) (quoting Bowden ex rel. Bowden v. Wal- Mart Stores, Inc., 124 F. Supp. 2d 1228, 1236 (M.D. Ala. 2000). To avoid summary judgment, the plaintiff must “explain why the defendants [are] not entitled to” summary judgment and may not complain about the entry of summary judgment if she fails to develop a legal argument at the time of the summary judgment motion. Case v. Eslinger, Case 2:15-cv-00419-WHA-GMB Document 57 Filed 03/31/17 Page 3 of 33 4 555 F.3d 1317, 1329 (11th Cir. 2009). Indeed, “[t]he onus is upon the parties to formulate arguments; grounds alleged in the complaint but not relied upon in summary judgment are deemed abandoned.” Resolution Trust Corp., 43 F.3d at 599. Accord, Rd. Sprinkler Fitters Local Union No. 669 v. Indep. Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir. 1994), cert. denied, 513 U.S. 868 (1994) (holding that district court “could properly treat as abandoned a claim alleged in the complaint but not even raised as a ground for summary judgment”); Melton v. Nat’l Dairy, LLC, 705 F. Supp. 2d 1303, 1317 (M.D. Ala. 2010); Walton ex rel. R.W. v. Montgomery Cnty. Bd. of Educ., 371 F. Supp. 2d 1318, 1324 (M.D. Ala. 2005) (Albritton, J.); Signore v. City of Montgomery, Ala., 354 F. Supp. 2d 1290, 1297 (M.D. Ala. 2005) (Albritton, J.); Robinson v. Regions Fin. Corp., 242 F. Supp. 2d 1070, 1075 (M.D. Ala. 2003). Duncan failed to respond or address the following arguments Defendants made in support of summary judgment: • The State of Alabama, as a separate entity, is entitled to judgment as a matter of law because Duncan failed to either allege any basis for liability against the State of Alabama itself or state a claim or proffer any evidence upon which such a claim should rest. • Duncan failed to allege retaliation claims against Flowers and Brendle. • Merely being listed as a witness regarding someone else’s complaint is insufficient to constitute protected conduct. • Complaints of mistreatment that do not put supervisors on notice that the complaint is about prohibited discriminatory conduct or do not allege discrimination clearly do not support a finding of protected conduct for a Title VII retaliation claim. • Adverse employment actions an employee experiences are only adequate proof of a prima facie case of retaliation if they are sufficiently material that they would dissuade a reasonable employee from engaging in protected conduct and if they are accompanied by some tangible harm. • Duncan cannot rely on evidence of her May 1, 2013 counseling to establish an adverse employment action for a retaliation claim. • Duncan cannot rely on evidence of her performance appraisal score in 2013 to establish an adverse employment action for a retaliation claim. Case 2:15-cv-00419-WHA-GMB Document 57 Filed 03/31/17 Page 4 of 33 5 • Duncan cannot establish an adverse employment action based on the EAP referral for a retaliation claim. • Alleged denial of subsequent employment promotional opportunities with respect to the Accounting Director I did not result from anything Defendants did; Duncan failed to reapply for the register after the State Personnel Department removed her pursuant to its “two-year” rule for continuous registers.3 • Duncan failed to proffer any evidence from which a reasonable jury could find that Lamar Woodham (“Woodham”), who made the decision to demote Duncan, knew anything about her protected conduct at the time he made the decision more than three months after the alleged protected conduct in which Duncan engaged. • Requisite evidence of but-for causation necessary to establish a retaliation claim is lacking. • Duncan’s own articulation of multiple improper motives for her demotion and the denial of promotion preclude recovery on retaliation. • Duncan cannot rely on evidence of her May 1, 2013 counseling to establish an adverse employment action for a discrimination claim. • Duncan cannot rely on evidence of her performance appraisal score in 2013 to establish an adverse employment action for a discrimination claim. • Duncan cannot establish an adverse employment action based on the EAP referral for a discrimination claim. • Duncan cannot support a prima facie case of failure to promote because she was not minimally qualified by virtue of being on the Certifications of Eligibles from which ALDOT appointed Hornsby, Dunn, or Adams. 3 It is undisputed that under State Personnel Department (“SPD”) rules, an employee who has been on a continuous register for two years without being appointed must be removed. ECF No. 41-1 ¶ 27. After SPD removes such an employee, the employee can reapply. Id. In the alternative, an employee can reapply after nine months on a continuous register to push off the date on which the two-year rule will affect the employee. Id. It is undisputed that on March 27, 2014, SPD removed Duncan from the promotional register for the Accounting Director I job classification because she had been on that register, which was a continuous register, for two years. Id. at ¶ 28. It is undisputed that on April 1, 2014, SPD removed Duncan from the open/competitive register for the Accounting Director I job classification because she had been on that register, which was a continuous register, for two years. Id. at ¶ 29. Duncan did not submit a new application for the Accounting Director I job classification in 2014. Id. at ¶ 30. She still satisfied the minimum qualifications for the Accounting Director I job classification in 2014. Id. Indeed, had Duncan submitted an application prior to her performance appraisal in June of 2014, she could have done so without any possible adverse impact from her June 2014 performance appraisal score which reflected a disciplinary deduction associated with her demotion. See ECF No. 53-1 at 8-11. Duncan failed to establish that an application she made prior to her June 2014 performance appraisal would have suffered any adverse impact as a result of her demotion. Indeed, she could not do so because no such evidence exists. Case 2:15-cv-00419-WHA-GMB Document 57 Filed 03/31/17 Page 5 of 33 6 II. DUNCAN MAY NOT AMEND HER PLEADINGS THROUGH ARGUMENT IN OPPOSITION TO SUMMARY JUDGMENT. To the extent that Duncan attempts to argue in her brief facts that she contends support a retaliation claim against Brendle or Flowers, Duncan improperly attempts to assert a new claim in her summary judgment argument. It is well-settled that a plaintiff may not attempt to change the nature of the claims asserted in the action or the basis for such claims through arguments made in opposition to summary judgment. See, e.g., White v. Beltram Edge Tool Supply, 789 F.3d 1188, 1200 (11th Cir. 2015) (plaintiff cannot assert claims in opposition to summary judgment and add them to the case if not alleged, but must instead file a motion to amend to add claims; therefore, district court was correct to hold that employer was entitled to summary judgment on claims for which were was no basis alleged in the complaint); Lightfoot v. Henry Cnty. Sch. Dist., 771 F.3d 764, 779 (11th Cir. 2014) (district court did not err in declining to consider new factual basis for claim raised in opposition to summary judgment because plaintiff may not amend complaint through argument in opposition to summary judgment); Miccosukee Tribe of Indians of Fla. v. U.S., 716 F.3d 535, 559 (11th Cir. 2013); GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1259 & n.27 (11th Cir. 2012) (rejecting plaintiff’s attempt to amend complaint through summary judgment arguments); Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1297 (11th Cir. 2006) (same); Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 974-975 (11th Cir. 2008). “At the summary judgment stage, the proper procedure for plaintiffs to assert a new claim is to amend the complaint in accordance with Fed. R. Civ. P. 15(a). A plaintiff may not amend her complaint through argument in a brief opposing summary judgment.” Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004). Count I of the Complaint sets forth her Case 2:15-cv-00419-WHA-GMB Document 57 Filed 03/31/17 Page 6 of 33 7 retaliation claim pursuant to Title VII4 against ALDOT and the State of Alabama. ECF No. 1 at 13-14. Count II of the Complaint sets forth her claims against Flowers and Brendle in their individual capacities pursuant to 42 U.S.C. § 1983 for alleged race discrimination; it makes no mention of alleged retaliation. ECF No. 1 at 14-15. Because Duncan only alleged retaliation claims against ALDOT and the State of Alabama, she cannot defeat summary judgment by arguing in support of an unpled retaliation claim against Flowers or Brendle as she appears to attempt. ECF No. 54-1 at 21-25. Similarly, Duncan’s allegations that she requested that Brendle and Flowers consider her “for a promotion to Accounting Director I” in April of 2013, prevents her from now arguing, as she has, that her claim regarding that request was not a request for promotion. Compare ECF No. 1 ¶ 15 with ECF No. 54-1 at 20-21. She cannot recast the nature of her claim in this way to try to avoid the statute of limitations bar Defendants raised in their summary judgment motion. III. A TWO-YEAR STATUTE OF LIMITATIONS APPLIED TO DUNCAN’S CLAIM REGARDING FAILURE TO PLACE HER IN AN ACCOUNTING DIRECTOR I POSITION UPON HER REQUEST IN APRIL OF 2013 AND BARRED HER CLAIM FILED ON JUNE 12, 2015. To determine whether the borrowed two-year Alabama limitation period or the four-year catch-all federal limitation period governs Duncan’s § 1981 claim regarding her request to be appointed to the Accounting Director I in April of 2013, the critical inquiry is whether the claim was cognizable under § 1981 before Congress amended it in 1991. In 1989, the Supreme Court explained that § 1981, as it then existed, was not a “general proscription of racial discrimination in all aspects of contract relations,” but that its protections extended “only to the formation of a contract, but not to problems that may arise later from the conditions of continuing employment.” 4 Title VII only allows relief against the employer and does not provide relief against individual managers. Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir.1991). Because Count I clearly only invokes Title VII, it cannot be read to encompass any viable claims against Flowers or Brendle in their individual capacities. Case 2:15-cv-00419-WHA-GMB Document 57 Filed 03/31/17 Page 7 of 33 8 Patterson v. McLean Credit Union, 491 U.S. 164, 176 (1989). The Patterson opinion elaborated that it was the view of the Supreme Court at that time that § 1981 only provided a cause of action for failure to promote claims where the promotion rose to “the level an opportunity for a new and distinct relation between the employee and the employer.” Patterson, 491 U.S. at 185. When Congress amended § 1981 in 1991, it recognized new causes of action under § 1981 not previously actionable. Determining the applicable statute of limitations is in large part dependent on whether the claim was cognizable before 1991; if the claims were cognizable under § 1981 prior to the 1991 amendments, they are subject to a two-year statute of limitations. See Jones v. R.R. Donnelley & Sons, Co., 541 U.S. 369, 382 (2004). If the claims were not cognizable prior to the 1991 amendments, they are subject to a four-year statute of limitations. Id. If the claims were cognizable prior to the 1991 amendments, they are subject to the borrowed statute of limitations which is, in this case, two years. Id. The Eleventh Circuit Court of Appeals has addressed the question of whether failure to promote claims are subject to a two-year or a four-year statute of limitations. It has applied the two-year statute of limitations to failure to promote cases because such cases nearly always involve the requisite change in the employer/employee relationship. See Saunders v. Emory Healthcare, Inc., 360 F. App’x 110 (11th Cir. 2010) (Eleventh Circuit upheld district court's finding of a new and distinct relation where the promotion in question was from nurse to educational coordinator); Price v. M&H Valve Co., 177 F. App’x 1 (11th Cir. 2006) (Eleventh Circuit applied two-year statute of limitations period to failure to promote claims involving machine shop and CNC machine supervisor positions); Hithon v. Tyson Foods, Inc., 144 F. App’x 795 (11th Cir. 2005) (Eleventh Circuit held that a promotion from plant personnel manager to human resources director for complex of plants represented a new and distinct relation between the employee and employer). Case 2:15-cv-00419-WHA-GMB Document 57 Filed 03/31/17 Page 8 of 33 9 Similarly, this Court and other district courts within the Eleventh Circuit have also applied the two-year statute of limitations to failure to promote cases. See, e.g., Adams v. Office of Atty. Gen., Ala., No. 2:11-cv-00621-WKW, 2013 WL 2155384, at *4-*5 (M.D. Ala. May 17, 2013) (holding that failure-to-promote claims under § 1981 were subject to a two-year limitations period and barred when not filed within that time); Clark v. APAC Mid-South, Inc., No.: 1:09-cv-02497, 2012 WL 6186012, *5 (N.D. Ala. Dec. 6, 2012) (holding that promotion from skilled, hourly, non- supervisory position to salaried positions with managerial functions rose to the level of a new and distinct relation and would have been actionable prior to the Civil Rights Act of 1991); Young v. Int’l Paper Co., No. 10–00179–CG–M, 2011 WL 3711210, *5 (S.D. Ala. Aug. 24, 2011) (finding a new and distinct relation and applying two-year statute of limitations to failure to promote claims from hourly-paid technician to salaried manager); McCray v. Wal-Mart Stores, Inc., Civil Action No. 1:06-cv-1123-MEF, 2009 WL 734138 at *9 (M.D. Ala. Mar. 17, 2009) (holding that denial of promotion to a department manager position was subject to application of two-year statute of limitations), aff’d 377 F. App’x 921 (11th Cir. 2010); Summerlin v. M&H Valve Co., Civil Action No. 03-AR-2786-M, 2005 WL 6132650, *5 (N.D. Ala. Jan. 31, 2005) (district court ruled that a promotion from factory worker holding various positions under a collective bargaining agreement to supervisor/management represented a new and distinct relationship); DeBailey v. Lynch– Davidson Motors, Inc., 734 F. Supp. 974, 977 (M.D. Fla. 1990) (where position changed job responsibilities and pay it constituted a “new and distinct relation” actionable under § 1981). Despite characterizing her request in the allegations of the Complaint as a request for a promotion, Duncan asserted baldly in her response to the summary judgment motion that the claim was really about a request for a reallocation through which she did not seek a distinct or new relationship with ALDOT. To determine whether an employment change creates a “new and Case 2:15-cv-00419-WHA-GMB Document 57 Filed 03/31/17 Page 9 of 33 10 distinct relation” for purposes of determining whether it was cognizable under § 1981 prior to the Congressional amendment of that law, courts consider a variety of factors without singling out a particular factor as dispositive. As is obvious from the cases cited above, a change in position that is accompanied by undertaking management or supervisory responsibilities is easily classified as a new and distinct relation. Other factors to consider include “pay, duties, responsibilities, status as hourly or salaried employee, method of calculating salary, required qualifications, daily duties, potential liability and other benefits.” Young v. Int’l Paper Co., 2011 WL 3711210 at *5 (citing DeBailey v. Lynch–Davidson Motors, Inc., 734 F. Supp. 974, 977 (M.D. Fla. 1990)). Higher pay alone is not in itself enough. Id. On April 3, 2013, Duncan sent an email to Flowers and Brendle in which she told them that she was in Band 1 on the Accounting Director I register. ECF No. 41-7 at Ex. A to Flowers Aff. In this email, she described what she viewed as an increase of her workload and she noted that there had been no merit increases in pay since 2008. Id. For these two reasons, she asked that Flowers and Brendle consider “reallocating” her position to Accounting Director I.5 Id. Duncan testified that she intended Flowers and Brendle to use whatever mechanism they deemed most appropriate to promote her into a different job classification. ECF No. 41-4, Duncan Dep. 138:1- 139:14. When an agency or department asks the State of Alabama Personnel Department (“SPD”) to conduct a desk audit for an employee and SPD finds that the employee has been performing 5 Duncan failed to present evidence from which a reasonable jury could find that she met the requirements for reallocation. The rule on reallocation requires a showing that the employee has been performing the duties associated with a higher classification. Duncan failed to establish that she met this requirement. In fact, she only justified her request based on her desire for a higher salary after years without a merit increase and an increase in volume of her work. She made no effort to establish that the increased volume of work somehow established that she was performing the duties of the Accounting Director I job classification. Indeed, she made no mention at all as to what duties associated with that classification rather than her current classification she had performed or how long she had done so. For this reason, she cannot establish that Defendants denied her a reallocation based on her race because she failed to establish she was minimally qualified for a reallocation under the applicable provisions of Alabama law. Case 2:15-cv-00419-WHA-GMB Document 57 Filed 03/31/17 Page 10 of 33 11 tasks associated with a different job classification, which is usually a higher job classification than the employee holds, SPD may reallocate the position number to the higher job classification. ECF No. 41-1, Dukes Aff. ¶ 21. The agency may then use the reallocation rule to request that SPD assign the employee who had been working in the reallocated position to that position. Id. For this process to be available, the employee must be on the register and SPD must find evidence that indicates that the employee has been performing the duties associated with the higher classification for the period of time specified in the reallocation rule. Id. If SPD approves the placement of the employee into the new job classification as a result of this process, the employee receives permanent status at that time without serving a probationary period or working test; and for this reason, the employee does not receive a step increase six months after the change in the employee’s job classification. Id. The employee’s anniversary date remains the same as it was prior to this process. Id. The employee does not automatically receive a pay increase upon changing job classifications. Id. If the employee’s salary in the prior job classification is within the pay grade range available to the new higher job classification, the employee will assume the step within the new classification’s pay grade range that matches the employee’s semimonthly salary. Id. If the employee’s salary in the prior job classification is below the pay grade range available to the new higher job classification, the employee will move to the pay available at Step 1 of the new job classification’s pay grade range. Id. Thus, reallocation does not automatically result in a pay increase at the time of the change in job classification, or six months later. Id. It does result in the employee moving to a pay grade range which has a higher maximum salary available. Id. Importantly, Duncan conceded that she was seeking either a promotion or a reallocation and that, in her mind, these are simply two different paths to the same destination. Even assuming that she was only seeking reallocation, which she has admitted was not the case, the evidence Case 2:15-cv-00419-WHA-GMB Document 57 Filed 03/31/17 Page 11 of 33 12 before the Court establishes that a change in job classification results in material changes in the employer/employee relationship. Reallocation always raises the ceiling for the employee’s salary, but only sometimes results in an immediate salary increase. Nevertheless, a reallocation requires an analysis of an employee’s assigned salary range and increases the employee’s potential salary through future increases. Once reallocated, the employee formally holds a position in a different Merit System job classification. Each Merit System job classification has its own job responsibilities and duties and job qualifications. Assuming a reallocation is approved, an employee’s job description changes from the one associated with the prior job classification to the one associated with the new job classification. These kinds of differences in earning potential, salary, duties, responsibilities, and required qualifications are sufficient to support a finding as a matter of law that the change in job classification whether by promotional appointment or reallocation constitute a “new and distinct relation” actionable under § 1981 even prior to Congressional amendment. For that reason, a two- year statute of limitations applied to this claim, and the court must find that Duncan waited too long to file suit. IV. A “CONVINCING MOSAIC” THEORY DOES NOT SALVAGE DUNCAN’S RACE DISCRIMINATION CLAIM. Rather that arguing her race discrimination claim under the traditional McDonnell Douglas paradigm applicable to cases in which an employee presents circumstantial evidence, Duncan only asserted that she demonstrated that trial is warranted on her § 1981 race discrimination claims against Flowers and Brendle under the “convincing mosaic of circumstantial evidence” approach approved in Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). ECF No. 54- 1 at 17-18. However, even under the approach outlined in that case, Duncan’s evidence is insufficient as a matter of law. Case 2:15-cv-00419-WHA-GMB Document 57 Filed 03/31/17 Page 12 of 33 13 A. Smith Represents Merely an Alternative Avenue to Establish a Prima Facie Case. In June of 2011, a panel of the Eleventh Circuit Court of Appeals issued a decision vacating summary judgment entered in an employer’s favor in a race discrimination case. Smith, 644 F.3d 1321. What the panel did is not nearly as interesting as how the panel said it arrived at the result. The district court examined the evidence in the record and determined that the employee, a white supervisor who lost his job for sending a racially offensive email to several other employees at Lockheed-Martin Corp. (“Lockheed”), was insufficient to survive the employer’s motion for summary judgment because the employee could not identify a supervisor of another race who had engaged in nearly identical conduct, but received more favorable treatment. Id. On appeal, the panel reversed this ruling and held that the circumstantial evidence in the case, which included allegedly disparate treatment of African-American non-supervisory employees for similar conduct and information regarding negative news reports about Lockheed’s failure to prevent a horrible workplace attack carried out by a Caucasian employee about whom Lockheed had earlier received complaints, was overwhelming. Taken as a whole, Smith can be read to acknowledge the flexibility of the articulation of the prima facie case under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and its progeny. After acknowledging what it considered to be circumstantial evidence from which a reasonable jury could infer a racial motivation with respect to the subject adverse employment action, the panel next discussed Lockheed’s proffered legitimate nondiscriminatory reason, but found there was sufficient evidence to create a triable issue as to whether that reason was a mere pretext for discrimination. Smith, 644 F.3d at 1343-44. Thus, whatever broad pronouncements included in its dicta,6 the Smith panel itself rejected summary judgment because there was, in its view, a jury 6 Whether Smith created a complete alternative to the McDonnell Douglas paradigm in its entirety or merely an alternative method of establishing a prima facie case is the subject of some debate. Defendants acknowledge that Smith Case 2:15-cv-00419-WHA-GMB Document 57 Filed 03/31/17 Page 13 of 33 14 question as to whether the legitimate, non-discriminatory reason Lockheed proffered was a pretext for race discrimination. In cogent analysis of the issue, Judge Steele explains why the holding of Smith should be read as simply acknowledging the flexibility of the articulation of the prima facie case rather than ignoring years of prior precedents from the Eleventh Circuit Court of Appeals which require analysis of employment discrimination cases predicated on circumstantial evidence to be analyzed under the burden-shifting approach outlined in McDonnell Douglas and its progeny. Bell v. Crowne Mgmt., LLC, 844 F. Supp. 2d 1222, 1231-1236 (S.D. Ala. 2012). Citing the prior precedent rule applicable in the Eleventh Circuit, Judge Steele explains why a broader reading of Smith, such as the one Duncan appears to urge, is problematic: To the extent that Smith suggests the burden-shifting paradigm of McDonnell Douglas can be ignored in a case based on circumstantial evidence, freeing the plaintiff from any obligation to establish a prima facie case, it is in tension with a long line of Eleventh Circuit precedent. It is to that extent also in tension with McDonnell Douglas itself: “The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination.” Bell, 844 F. Supp. 2d at 1232 (internal footnote number acknowledging footnote collecting cases omitted). In so doing, Judge Steele listed the many prior published decisions with which a broad reading of the panel decision in Smith would be in tension and specifically cited to the prior panel precedent rule. Bell, 844 F. Supp. 2d at 1232 n.19 & n.20.7 Defendants respectfully submit that this Court should read Smith narrowly as Judge Steele did in Bell. See also King v. Ferguson contains some very broad language which some may read to provide an avenue for plaintiffs to avoid both specific formulations of the prima facie case and the need to show a triable issue of fact as to pretext. Defendants respectfully submit that such statements in Smith are dicta and not the holding which rested instead on the existence of evidence of pretext. Furthermore, Defendants submit that such statements in Smith run afoul of the prior panel precedent rule. 7 The Eleventh Circuit has a very strong prior panel rule. See Wilson v. Coman, 284 F. Supp. 2d 1319, 1338-39 (M.D. Ala. 2003). Case 2:15-cv-00419-WHA-GMB Document 57 Filed 03/31/17 Page 14 of 33 15 Enters., Inc., 971 F. Supp. 2d 1200, 1216 (N.D. Ga. 2013), aff’d, 568 F. App’x 686 (11th Cir. 2014) (holding that Smith did not abrogate the prima facie case requirement or offer an alternative to the entire McDonnell Douglas analytical framework, but only confirmed that there are alternative ways to establish a prima facie case). B. Duncan’s Evidence Failed to Establish a Convincing Mosaic. Additionally, Duncan failed to even attempt to explain how the evidence before the Court constituted a “convincing mosaic” of circumstantial evidence that Brendle and Flowers discriminated against Duncan because of her race. Duncan has not shown that the evidence here is comparable to evidence which would allow a jury to infer that Flowers or Brendle engaged in intentional discrimination against Duncan because of her race in connection with the three alleged claims set forth in Count II of the Complaint: (1) denial of promotions awarded to Tammy Dunn and Carissa Adams; (2) imposition of discipline and holding her to a higher standard than white supervisors; and (3) demoting Duncan. ECF No. 1 ¶¶ 58-60. Despite Duncan’s assertions regarding other alleged claims, the allegations of Count II of the Complaint plainly limited her claims against Flowers and Brendle to these events.8 The evidence which Duncan asserted composed a “convincing mosaic” arises out of a hodgepodge of events which occurred over seven years and which revealed nothing of discriminatory intent. Duncan argued that the fact that she was not disciplined prior to 2013 establishes an inference that any discipline she received in 2013 was the product of racial discrimination, but 8 Consequently, Duncan failed to assert any claim arising out of: (1) the failure to promote or reallocate her in April of 2013; (2) the failure to promote her to the position to which ALDOT appointed Jeff Hornsby; (3) the performance appraisal score she received in June of 2013; (4) claims that Brendle undermined Duncan; (5) claims relating to “hostility” from Brendle or Flowers; and (5) claims relating to the selection of Mark Vansandt instead of Duncan for a promotion in 2008. Case 2:15-cv-00419-WHA-GMB Document 57 Filed 03/31/17 Page 15 of 33 16 such an inference cannot be said to be a reasonable one or even a logical one. ECF No. 54-1 at 19. She pointed to Flowers’ selection of a Caucasian male for an Accounting Manager position in which she was interested in 2008 as evidence that Flowers possessed a motive to discriminate against her more than five years later because of her race. ECF No. 54-1 at 19; ECF No. 41-4, Duncan Dep. 78:3-7; 102:9-12. She complained that Brendle or Flowers undermined her authority over her subordinate employees, but failed to note the undisputed fact that because they supervise these employees indirectly, they had the undisputed right to address issues relating to Duncan’s performance or the performance of her subordinates. ECF No. 54-1 at 19; ECF No. 41-4, Duncan Dep. 102:16-103:7. She pointed to the failure to immediately appoint her to an Accounting Director I position on April 3, 2013, when she requested consideration for that position. Although it is undisputed, she failed to mention that she does not dispute that her April 3, 2013 request came during the time when a major reorganization was about to be undertaken and that Flowers’ response was that he would consider the request as part of that reorganization. ECF No. 54-1 at 19; ECF No. 41-4, Duncan Dep. 127:16-128:14. Duncan identified an informal counseling session on May 1, 2013 and a slightly reduced performance appraisal score in June of 2013. ECF No. 54-1 at 19-20. Although it is undisputed that many of her subordinates had complained about her, she failed to mention that those complaints resulted in the counseling session and the reduction of two categories on her performance appraisal. ECF No. 41-7 at ¶¶ 8-10, 27. Duncan asserted that on one occasion Brendle called one of Duncan’s statements about not getting support “stupid”9 and asked if a counseling 9 In the summary judgment response, Duncan asserted that Brendle called Duncan stupid. ECF No. 54-1 at 10. This is false. The document Duncan cited plainly stated that Brendle called Duncan’s statement, not Duncan herself, stupid. ECF 41-17 at 17. This fact is further established in Duncan’s deposition testimony. ECF No. 41-4, Duncan Dep. 95:4- 23. Case 2:15-cv-00419-WHA-GMB Document 57 Filed 03/31/17 Page 16 of 33 17 Duncan issued to Beth Rosser, a Caucasian employee, could be undone.10 She singled out Flowers’ request that an investigation be conducted which ultimately resulted in a recommendation that she be demoted, but neglected to acknowledge the undisputed facts relating to complaints made about Duncan which motivated both the investigation and the later recommendation. ECF No. 41-7 at ¶¶ 11-13, 16. Finally, Duncan singled out three appointment decisions after her demotion, which involved the appointment of Caucasian employees to either the Accounting Director I job classification or the Accounting Manager job classification. ECF No. 54-1 at 20. She brushed aside Defendants’ argument that she was ineligible for appointment to any of these positions because she was not on the Certification of Eligibles by asserting without any citation to any evidence in the record that it was Defendants’ fault that she did not reapply. ECF No. 54-1 at 20; ECF No. 42 at 42-43, 72-73. Duncan offered no evidence whatsoever that Flowers used racially insensitive language or displayed racist symbols; Duncan offered no evidence of any such language or content she experienced from any source at ALDOT. ECF No. 41-4, Duncan Dep. 101:1-102:15; 194:3- 197:15. Her supposition and speculation that racist intent motivated Flowers or Brendle rests on 10 The portion of Duncan’s testimony regarding Brendle’s alleged statement regarding Rosser is in the record. ECF No. 41-4, Duncan Dep. 93:1-14. It is undisputed that the counseling Duncan issued to Rosser was not undone. ECF No. 41-14 ¶ 13. Furthermore, Duncan testified that she believed that Brendle was asking about this both because of Rosser’s race and because of Brendle’s alleged friendship with Rosser. ECF No. 41-4, Duncan Dep. 100:4-20. Duncan’s conclusion that friendship motivated Brendle damages her claim. See, e.g., Brown v. Am. Honda Motor Co., Inc., 939 F.2d 946, 951 (11th Cir. 1991) (“It is not at all improper for an employer or a business contemplating a long- term association to prefer doing business with someone with whom they are familiar.”); Platner v. Cash & Thomas Contractors, Inc., 908 F.2d 902, 905 (11th Cir. 1990) (favoritism and not sex discrimination motivated the challenged decision making liability inappropriate); Phillips v. Hibbett Sporting Goods, Inc., 329 F. Supp. 2d 1280, 1291 (M.D. Ala. 2004) (“Phillips does her own case damage when she speculates that Griffin and Curry were selected for promotion because they were Bundrick's ‘buddies.’ If Phillips’ speculation is correct, then her case challenges the ‘fairness’ of employment decisions based on friendship rather than the legality of employment decisions motivated by racial preference or sex discrimination. Put another way, even if a jury believed Phillips’ speculation, Bundrick’s decision to promote his friends would not support a claim of race or sex discrimination.”). Case 2:15-cv-00419-WHA-GMB Document 57 Filed 03/31/17 Page 17 of 33 18 her own assumptions about how people act which appeared to be grounded in her own views about race. For example, she characterized Brendle’s use of the word “stupid” to describe Duncan’s statement as a “racial insult” because Brendle is Caucasian and because Duncan didn’t know, but nevertheless assumed that Brendle wouldn’t call a Caucasian employee’s statement “stupid.” ECF No. 41-4, Duncan Dep. 96:4-100:7. Duncan presented no evidence which a reasonable person could find established racist intent. Given the weakness and paucity of evidence before the Court, Duncan failed to adequately analogize the circumstances of this case to those in Smith. The facts Duncan highlighted, even stripped of the context necessary to provide clues as to their meaning are insufficient to allow a reasonable jury to infer that race discrimination motivated the actions of either Flowers or Brendle toward her. Furthermore, the evidence is too limited to discredit the legitimate, non-discriminatory reasons that Defendants have proffered to explain the actions taken with respect to Duncan. Where, as here, the evidence is insufficient to either establish an inference of discrimination or to discredit proffered non-discriminatory reasons, summary judgment is appropriate. See, e.g., Wood v. Bailey- Harris Constr. Co., Civil Action No. 2:11-cv-136-WHA, 2012 WL 3069949, at *5 (M.D. Ala. July 27, 2012) (rejecting Smith as an alternative means of defeating summary judgment in a case, but also explaining that where evidence was of insufficient weight and volume to be comparable to Smith summary judgment must be granted). C. Duncan’s Failure to Proffer Evidence of Pretext Requires the Court to Grant Summary Judgment on Her Claims of Race Discrimination. Furthermore, even if the Court assumes for the sake of argument that Duncan has somehow presented evidence sufficient to establish a prima facie case of race discrimination as to some action Brendle or Flowers took with respect to Duncan’s employment, Duncan’s failure to even attempt to address any of the proffered legitimate, non-discriminatory reasons for the actions Case 2:15-cv-00419-WHA-GMB Document 57 Filed 03/31/17 Page 18 of 33 19 Flowers and Brendle took is fatal to her claims. It is the plaintiff’s burden to proffer evidence from which a reasonable jury could find that the proffered non-discriminatory reasons for the adverse employment action challenged were not the true reasons. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 265 (1981); Cyprian v. Auburn Univ. Montgomery, 799 F. Supp. 2d 1262, 1284 (M.D. Ala. 2011). To do so, the employee may either directly persuade the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is not worthy of credence. Id. Thus, a plaintiff can demonstrate pretext by pointing to “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in the explanation the employer provides. Id. Pretext requires a showing both that the proffered reasons were false and that discrimination was the real reason. St. Mary’s Honor Cntr. v. Hicks, 509 U.S. 502, 515 (1993) (emphasis added); Cyprian, 799 F. Supp. 2nd at 1284. Unless a plaintiff can properly create a genuine issue of material fact as to each of the articulated reasons, the employer is entitled to summary judgment. Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000); Cyprian, 799 F. Supp. 2nd at 1284. As previously explained, the proper reading of Smith is as addressing the prima facie case, but not altering the need for a plaintiff to respond to show pretext if a defendant proffers legitimate, non-discriminatory reasons for actions taken. Duncan makes no argument as to pretext with respect to any alleged act of race discrimination. Flowers and Brendle are entitled to summary judgment for this reason V. A “CAT’S PAW” THEORY DOES NOT SAVE DUNCAN’S RACE DISCRIMINATION CLAIMS. In a footnote in the section of her brief addressing her race discrimination claims, Duncan described a “cat’s paw” theory as one method of establishing discrimination. She cited Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1331 (11th Cir. 1999), a case in which the Eleventh Circuit held the “cat’s paw” theory did not apply. She made no attempt to explain how her race Case 2:15-cv-00419-WHA-GMB Document 57 Filed 03/31/17 Page 19 of 33 20 discrimination claim could be salvaged through the application of such a theory to this case. Defendants submit that it cannot. Presumably, Duncan intended this footnote to address the undisputed fact that Lamar Woodham (“Woodham”) made the decision to demote her, but she had no evidence whatsoever about discriminatory intent that Woodham had when making the decision. Duncan’s alleged evidence of discriminatory intent focused on Flowers and Brendle, not Woodham. A “cat’s paw” case is one in which an employee seeks to hold his employer liable for the improper animus of a supervisor who did not make the ultimate adverse employment decision about which the employee complains. See Sims v. MVM, Inc., 704 F.3d 1327, 1335 (11th Cir. 2013); Llampallas v. Mini- Circuits, Lab, Inc., 163 F.3d 1236, 1249 (11th Cir. 1998), cert. denied, 528 U.S. 930 (1999); Jackson v. Mid-Am. Apartment Communities, 325 F. Supp. 2d 1297, 1302 (M.D. Ala. 2004) (the “cat’s paw” situation is one in which the supervisor bearing the discriminatory animus is the true decision-maker, and the actual decision-maker with respect to the adverse employment action becomes a mere conduit for that discriminatory animus). See also Stimpson, 186 F.3d at 1331 (holding that evidence did not support a cat’s paw theory in that case). However, the causal link which “cat’s paw” evidence may create can be broken where there is independent investigation on which the decision-maker relied to determine the appropriate course of action. See, e.g., Roberts v. Randstad N. Am., Inc., 231 F. App’x 890, 896 (11th Cir. 2007) (affirming summary judgment because person who made the decision to take the adverse employment action did so after an independent analysis which made a cat’s paw theory inapplicable); Stimpson, 186 F.3d at 1332 (finding that cat’s paw liability did not apply where decision-maker conducted a hearing to investigate the charges against the employee at which hearing the employee was able to present evidence and witnesses); Llampallas, 163 F.3d at 1250 (rejecting a cat’s paw theory because Case 2:15-cv-00419-WHA-GMB Document 57 Filed 03/31/17 Page 20 of 33 21 adverse action was not based simply on a tacit approval of a recommendation and explaining that “[w]hen the employer makes an effort to determine the employee’s side of the story before making a tangible employment decision affecting that employee,… it should not be held liable under Title VII for that decision based only on [another] employee’s hidden discriminatory motives.”); Foster v. Mid State Land & Timber Co., No. 2:06cv405-ID, 2007 WL 3287345, at *16 (M.D. Ala. Nov. 5, 2007) (granting summary judgment because “the cat’s paw theory prohibits a decisionmaker from accepting a racially-biased recommendation only when the decisionmaker fails to independently evaluate the recommendation” and plaintiff failed to present evidence that the decision-maker acted without conducting an independent investigation). Here, Duncan contended that her November of 2013 demotion to Senior Accountant resulted from discriminatory animus. Duncan presented no evidence from which a reasonable jury could find that Woodham, the decision-maker, possessed any racist intent with respect to that decision. Duncan focused on what she believed established discriminatory intent that she believed Flowers and Brendle possessed between April of 2013 and August of 2013, when Flowers recommended that ALDOT demote Duncan. It is undisputed, however, that neither Flowers nor Brendle investigated the complaints against Duncan in June of 2013. Instead, after consulting with Woodham about the complaints, ALDOT selected Maxine Wheeler, an African-American female supervisor with experience with personnel investigations, who was not under the supervision of either Flowers or Brendle, to conduct the investigation. ECF No. 41-38 ¶¶ 1-35. After Wheeler’s interviews, she presented a summary of the interviews and her conclusions regarding Duncan’s conduct. Id. at ¶¶ 28-34. Wheeler’s report persuaded Flowers to recommend demotion. ECF No. 41-7 ¶¶ 13, 16. This recommendation was not the basis on which Woodham acted. Case 2:15-cv-00419-WHA-GMB Document 57 Filed 03/31/17 Page 21 of 33 22 The Personnel Director submitted Flowers’ recommendation that ALDOT demote Duncan and provided it to an Equal Employment Officer for a compliance review. ECF No. 41-1 ¶ 24. In addition to that review, the Personnel Director, the Chief Legal Counsel, and a representative of ALDOT’s Administrative Division reviewed the recommendation. Id. Next, ALDOT advised Duncan of the recommendation, its basis, and her option to have a pre-demotion hearing. Id. at ¶ 25. Duncan exercised her option to have a hearing. Id. A trained hearing officer, DeJarvis Leonard, who is African-American, conducted the hearing. Id. He heard statements from 13 witnesses, including Duncan. ECF No. 41-44 ¶ 8. He allowed Duncan to question witnesses ALDOT called. ECF No. 41-39; ECF No. 41-40. He allowed Duncan to explain what testimony she believed one of her witnesses, who was not present to speak at the hearing, would have offered had she been present. ECF No. 41-44 ¶ 8. DeJarvis Leonard considered all of the information presented at the hearing in the form of witness statements and documents. Id. ¶¶ 4, 6, 8, 9, 12. After considering that information, he determined that the demotion recommended was warranted. Id. ¶ 9, 12. It is undisputed that Woodham, acting with authority delegated to him, made the decision to demote Duncan based on DeJarvis Leonard’s post-hearing recommendation. ECF No. 41-37 ¶¶ 14, 17-18. Woodham based his decision on the recommendation of a neutral hearing officer who considered evidence presented at a hearing and made an independent judgment as to the appropriate action. Id. The fact that DeJarvis Leonard performed an independent review of the evidence and then made a recommendation to Woodham breaks any causation chain between Flowers or Brendle and Woodham. Indeed, the decision in this action was investigated by an independent party even before Flowers’ recommendation and vetted after Flowers decided to act. The involvement of these independent reviewers also disrupts any transferred intent under a “cat’s paw” analysis even if the court assumes for the sake of argument that Duncan has presented Case 2:15-cv-00419-WHA-GMB Document 57 Filed 03/31/17 Page 22 of 33 23 evidence of racial motive on the part of either Brendle or Flowers, which she has not done.11 Thus, Duncan’s invocation of the “cat’s paw” analysis does not justify denying summary judgment on her race discrimination claims pursuant to § 1981 through § 1983. VI. DUNCAN FAILED TO CREATE A TRIABLE ISSUE AS TO HER RETALIATION CLAIMS PURSUANT TO TITLE VII. A. Duncan Failed to Address the Impact of Nassar on Analysis of Retaliation Claims. To adequately support a prima facie claim of retaliation in the face of a properly supported summary judgment motion, Duncan had to proffer evidence from which a reasonable jury could find that (1) she engaged in protected conduct;12 (2) that she suffered a materially adverse employment action; and that (3) her protected activity was a but-for cause of the adverse employment action. See, e.g. Pace v. ALFA Mut. Ins. Co., 178 F. Supp. 3d 1201, 1210 (M.D. Ala. 2016) (describing the change the Supreme Court’s decision in Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013) made to the causation element of the prima facie case); Green v. MOBIS Ala., LLC, 995 F. Supp. 2d 1285, 1307 (M.D. Ala. 2014) (same); Ambus v. AutoZoners, LLC, 71 F. Supp. 3d 1280, 1302 (M.D. Ala. 2014) (same); Osburn v. Hagel, 46 F. Supp. 3d 1235, 11 Duncan’s claim must also fail because of the complete lack of any evidence that Flowers or Brendle acted based on discriminatory animus against Duncan because of her race. See, e.g., Stimpson, 186 F.3d at 1331 (holding it is incumbent upon a plaintiff to establish that a discriminatory animus was behind the influencer’s recommendation); Rhone v. City of Demopolis, No. 2:99-0876-BH-L, 2001 WL 102398, at *4 (S.D. Ala. Jan. 23, 2001), aff’d, 33 F. App’x 991 (11th Cir. 2002). 12 Duncan failed to meet head on or address the specific arguments Defendants made regarding whether there was sufficient evidence as to whether or when she engaged in protected conduct. Instead, Duncan merely parrots the language of Title VII itself without citing any case in which actions like hers were held to be within the scope of that language. It is Duncan’s burden to establish protected conduct that caused the adverse employment action. The Court must limit its consideration to the actions Duncan identified with respect to her May 2013 internal complaint and her involvement in the Tamiko Jordan internal complaint around that same time when it determines whether she has met her burden. She abandoned any other bases for a finding of protected conduct through her argument. See ECF No. 54- 1 at 22-25. Duncan’s burden required her to establish that her acts came within either the participation clause or the opposition clause. See, e.g., E.E.O.C. v. Total Sys. Servs., 221 F.3d 1171, 1174 (11th Cir. 2000). Participating in an employer’s internal investigation process does not constitute protected activity under the participation clause. Id. For her conduct to fall within the opposition clause, the law required her to establish that she engaged in an act of opposition regarding a practice Title VII made unlawful. See Little v. United Techs., Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir. 1997). Her conclusory argument failed to satisfy her burden. Other than asserting these points regarding Duncan’s response, Defendants rest on their previously asserted argument with respect to the protected conduct element as it stands unrebutted. Case 2:15-cv-00419-WHA-GMB Document 57 Filed 03/31/17 Page 23 of 33 24 1251 n.13 (M.D. Ala. 2014) (same). Defendants argued that Duncan could not meet this burden. Indeed, she failed to do so as will be discussed below. Moreover, relying on a pre-Nassar decision, Duncan argued that the causal link is interpreted broadly. On at least one occasion, this Court has questioned the continued vitality of the “not wholly unrelated” standard for the causation element of the prima facie case in the wake of Nassar. See Green, 995 F. Supp. 2d at 1306 n.12 (Fuller, J.). Indeed, it is logically difficult to square such broad language with Nassar’s requirement of a showing of but-for causation. The Court should not allow Duncan to evade her evidentiary burden with respect to pointing to evidence from which a reasonable jury could find but-for causation as Nassar required. B. Material Adversity for Purposes of Determining Whether the Adverse Action Element of a Prima Facie Case of Retaliation Is Met Is Not Always a Jury Question, Nor Is an Employee’s Subjective View Dispositive. When the Supreme Court decided Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), it explained that whether a particular action is “materially adverse” for purpose of substantiating a retaliation claim “depends upon the circumstances of the particular case,” and must be judged “from the perspective of a reasonable person in the plaintiff’s position.” Id. at 71. If the adverse action might have dissuaded a reasonable employee from engaging in protected conduct, then the employee has shown sufficient material adversity. Id. at 68. The “employee’s subjective view of the significance and adversity of the employer’s action is not controlling; the employment action must be materially adverse as viewed by a reasonable person in the circumstances.” Trask v. Secretary, Dep’t Veterans Affairs, 822 F.3d 1179, 1195 (11th Cir. 2016). The determination of whether an adverse employment action is sufficient to support a retaliation claim is not always a question for the jury as Duncan suggested. See, e.g., Crawford v. Carroll, 529 F.3d 961, 974 (11th Cir. 2008) (holding as a matter of law that an employee suffered Case 2:15-cv-00419-WHA-GMB Document 57 Filed 03/31/17 Page 24 of 33 25 a materially adverse employment action for purposes of a retaliation claim because she received an unfavorable performance review that affected her eligibility for a merit pay increase);13 Williams v. Apalachee Ctr., Inc., 315 F. App’x 798, 799 (11th Cir. 2009) (affirming summary judgment for employer because plaintiff failed to create a genuine issue of material fact as to whether he suffered an adverse employment action). Indeed, the Eleventh Circuit Court of Appeals has affirmed summary judgment for an employer and found as a matter of law that an employee who received a performance appraisal of “fully successful” rather than “exceptional” within three months after protected conduct failed to demonstrate that she suffered an adverse material consequence after receiving the “fully successful” performance review. Trask, 822 F.3d at 1191, 1194-1195. The Eleventh Circuit Court of Appeals has repeatedly explained that negative performance evaluations alone fail to satisfy the adverse employment action element of a prima facie case of retaliation even under the more liberal standard announced in Burlington. “Negative performance evaluations, standing alone, do not constitute adverse employment actions” sufficient to support a Title VII retaliation claim. Swindle v. Jefferson Cnty. Comm’n, 593 F. App’x 919, 926 (11th Cir. 2014). In Barnett v. Athens Reg’l Med. Ctr., Inc., 550 F. App’x 711, 715 (11th Cir. 2013), the Eleventh Circuit noted that a negative evaluation was not an adverse employment action for purposes of a Title VII retaliation claim where “[i]n particular, nothing in the record showed that 13 Curiously, Duncan argued that this case held that it is for a jury to decide whether anything more than the most petty or trivial action can be considered a materially adverse employment action. ECF 54-1 at 24. This mischaracterizes the holding of this case. The Eleventh Circuit did not require a jury to decide whether the plaintiff had experienced a materially adverse employment action. Instead, it decided the question itself as a matter of law relying on prior decisions relating to performance appraisals with an adverse effect on compensation. In a footnote, the Eleventh Circuit characterized the Supreme Court’s decision in Burlington as “strongly suggest[ing] that it is for a jury to decide whether anything more than the most petty and trivial actions against an employee should be considered ‘materially adverse’ to him” and sufficient to support the adverse employment action element of the retaliation prima facie case. Based on what the Eleventh Circuit Court of Appeals did in Crawford, however, it clearly viewed the “strong suggestion” as dicta. Its description of the suggestion itself became dicta as well. It is not the holding of the case. Case 2:15-cv-00419-WHA-GMB Document 57 Filed 03/31/17 Page 25 of 33 26 these acts were materially adverse in that they would have affected any future pay raise or his future job status in any way. On the contrary, the evidence established that these acts had no effect on his job status whatsoever.” Surely these decisions dispel any notion that the question of material adversity is necessarily one for the jury. C. Duncan’s Performance Appraisal in June of 2013 Is Not a Material Adverse Employment Action. Duncan identified her June 24, 2013 performance appraisal as the beginning of the alleged retaliatory adverse employment actions against her. ECF No. 54-1 at 12, 23. It is undisputed that Brendle prepared the performance appraisal. It is undisputed that Flowers signed off on the performance appraisal as reviewing supervisor. It is undisputed that Brendle reduced two of Duncan’s 11 component scores on this appraisal by one point each as compared to Duncan’s 2012 performance appraisal scores. Those two components were her responsibility scores for (1) supervising activities, assigning tasks, training, and evaluating employees and (2) communicating information orally and in writing. Brendle gave Duncan “Meets Standards” on each instead of the “Exceeds Standards” rating she received in 2012. It is undisputed that Duncan’s overall performance appraisal score on the 2013 appraisal was “Exceeds Standards” just as it had been in 2012. Duncan’s performance appraisal score for 2013 had no adverse effect on her compensation for several reasons: (1) merit raises based on performance appraisals were not available in 2013 (ECF No. 41-1 ¶ 12); and (2) had merit raises been available, a score of “Exceeds Standards” like the one Duncan received would have made her eligible for a two-step merit raise. Thus, this 2013 performance appraisal had no adverse effect on Duncan’s compensation. Case 2:15-cv-00419-WHA-GMB Document 57 Filed 03/31/17 Page 26 of 33 27 Duncan asserted that the existence of the 2013 performance appraisal14 could have caused her to not be favorably considered had a potential employer reviewed her personnel file after the June 2013 appraisal. ECF No. 54-1 at 12; ECF No. 41-4, Duncan Dep. 66:6-68:11. It strains credulity to suggest that a performance appraisal of “Exceeds Standards” with a score of 33.6 would have dissuaded an employer who conducted such a review of her file and saw that her preceding appraisals were “Exceeds Standards” with scores of 36.4 and 35.5. Nevertheless, that is Duncan’s argument. Importantly, Duncan does not point to any evidence from which a reasonable jury could find that the score on her 2013 performance appraisal actually had any adverse impact on her ability to be favorably considered for another Merit System job classification. Her argument is predicated wholly on speculation about what could have been as opposed to some actual adverse consequence she experienced. She offered no evidence that anyone considered her 2013 performance appraisal and decided not to select her for a position as a result. Mere speculation cannot establish an adverse employment action. See, e.g, Weston-Brown v. Bank of Am. Corp., 167 F. App’x 76, 80 (11th Cir. 2006). For these reasons, Defendants are entitled to summary judgment as to any claim based on Duncan’s 2013 performance appraisal. D. Duncan’s May 1, 2013 Counseling and Other Events That Preceded Any Protected Conduct Cannot Support a Retaliation Claim. Duncan admitted that the acts she alleged were her protected conduct occurred on May 14, 201315 and on June 14, 2013.16 For this reason, all of her complaints about events prior to those 14 Duncan clearly testified that the only performance appraisal about which she was making a complaint in this lawsuit was the 2013 appraisal. ECF No. 41-4, Duncan Dep. 68:14-69:22. The 2013 performance appraisal did not have any disciplinary deductions taken. ECF No. 41-4, Duncan Dep. 70:11-13. 15 This is the date ALDOT received Jordan’s internal complaint and Duncan’s internal complaint. ECF No. 41-4, Duncan Dep. 81:21-87:10; ECF No. 41-32. 16 This is the date Duncan spoke to ALDOT’s investigators about her internal complaint and Jordan’s internal complaint. ECF No. 41-4, Duncan Dep. 166:4-14 Case 2:15-cv-00419-WHA-GMB Document 57 Filed 03/31/17 Page 27 of 33 28 dates cannot support her retaliation claim. It is impossible for protected conduct to cause adverse actions before it has happened. See, e.g., Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir. 2000) (affirming summary judgment in favor of employer on retaliation claim because no causal link possible where employee’s protected conduct occurred after the adverse employment action). Importantly, this means that Duncan’s testimony regarding the May 1, 2013 counseling, the times Duncan felt undermined, and the conversations prior to May 14, 2013 in which Duncan described Brendle’s behavior toward her as hostile cannot be offered as evidence of adverse actions for purposes of Duncan’s retaliation claim. Therefore, Duncan’s broad reliance on what she characterized as a “pattern” of materially adverse employment actions was not that at all. E. Duncan Failed to Proffer Required Evidence That Woodham Knew of Her Claimed Protected Conduct at the Time of the Demotion Decision Which Occurred Months After Her Claimed Protected Conduct. Duncan based her final claim of retaliation on her demotion. It is undisputed that Woodham made the decision to demote Duncan on October 30, 2013. ECF No. 41-48; ECF No. 41-37 ¶ 17; ECF No. 41-4, Duncan Dep. 319:16-320:1. Duncan contended that her conduct with respect to her internal complaint and Tamiko Jordan’s internal complaint in May and June of 2013 caused Woodham to make the decision to demote her. In order to establish the causation element of a retaliation prima facie case, a plaintiff may point to close temporal proximity between the claimed protected activity and the identified adverse employment action, but mere temporal proximity, without more, must be very close. See, e.g., Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 267, 273 (2001); Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007); Zeigler v. Ala. Dep’t of Human Resources, 710 F. Supp. 2d 1229, 1242 (M.D. Ala. 2010). Even a three-month interval is too long. Id. Obviously, the time between the claimed protected conduct in May and Case 2:15-cv-00419-WHA-GMB Document 57 Filed 03/31/17 Page 28 of 33 29 June and the demotion decision in October is too long to establish, by itself, any inference of a causal connection. Perhaps this is why Duncan relied on the alleged knowledge of her claimed protected conduct that she claimed Flowers and Brendle possessed in June of 2013 to argue that their role in initiating Maxine Wheeler’s investigation in July of 2013 and recommending her demotion in August of 2013 constituted sufficiently proximate related events. While this argument might establish sufficient circumstantial evidence of causation for adverse employment actions Flowers or Brendle took, it does not suffice for adverse employment actions Woodham took like the decision to have Maxine Wheeler investigate complaints about Duncan or the decision to demote Duncan. ECF No. 41-37 ¶¶ 6, 14-17; ECF No. 41-7 ¶¶ 11-12. Additionally, it is not entirely clear from her response brief if that is what she argued. She failed to identify any legal precedent for such an argument. In a sense, the argument is a “cat’s paw” argument. As discussed in the context of her race discrimination claims above, such an argument is unavailing because of the independent investigation which intervened between the recommendation and the demotion decision. Defendants are also entitled to summary judgment on a retaliation claim arising out of Duncan’s demotion or any adverse consequences therefrom because Duncan failed to offer evidence required to establish causation: namely, that the decision-maker knew of the claimed protected conduct. To establish a causal connection between protected conduct and an adverse employment decision, a plaintiff must show that the person who took the adverse employment action was aware of the protected conduct at the time the decision was made to take the adverse employment action. See, e.g., Brungart v. Bellsouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000) (“[T]emporal proximity alone is insufficient to create a genuine issue of fact as to causal Case 2:15-cv-00419-WHA-GMB Document 57 Filed 03/31/17 Page 29 of 33 30 connection where there is unrebutted evidence that the decision maker did not have knowledge that the employee engaged in protected conduct.”); Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1354 (11th Cir. 1999); Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192, 1197 (11th Cir. 1997); Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993); Crayton v. Ala. Dep’t of Agric. & Indus., 589 F. Supp. 2d 1266, 1287 (M.D. Ala. 2008). Here, Duncan lacks any evidence from which a reasonable jury could find that Woodham, the person who made the demotion decision, had knowledge of Duncan’s internal complaints or her statements in support of Jordan’s internal complaint at the time he reviewed DeJarvis Leonard’s recommendation and decided to demote Duncan. This evidentiary failing is fatal to her retaliation claim. F. Duncan’s Pretext Argument Is Insufficient to Defeat Summary Judgment. Duncan’s failure to proffer sufficient evidence of pretext with respect to any proffered legitimate, non-retaliatory reason17 for any claimed adverse employment action arising after her alleged protected conduct requires that the Court grant Defendants’ motion for summary judgment as to such claims. A reason cannot be a pretext for retaliation or discrimination unless it is to show both that the reason was false and that the real reason was retaliation or discrimination. See St. Mary’s Honor Ctr., 509 U.S. at 515. Duncan’s pretext argument does not address either part of the requirement. Working for an employer without being disciplined even for many years does not establish that the employer’s reason for the challenged employment action is false. Similarly, a 17 Defendants’ proffered legitimate, non-retaliatory reasons and the evidentiary support for each are summarized in their brief in support of their motion for summary judgment. See ECF No. 42 at 63. Duncan failed to address these reasons in her brief. She failed to demonstrate weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in these reasons that might allow a reasonable factfinder to find them unworthy of credence. See, e.g., Springer v. Convergys Customer Mgmt. Group Inc., 509 F.3d 1344, 1348 (11th Cir. 2007). She failed to argue that any of these reasons are not reasons that might motivate a reasonable employer and failed to meet any of them head on and rebut them. See, e.g., Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1088 (11th Cir. 2004). She did not even attempt to argue that Woodham had no basis on which to believe that she had engaged in misconduct. E.E.O.C. v. Total Sys. Servs., 221 F.3d 1171, 1176 (11th Cir. 2000). Instead, she merely invited the Court to err by asserting that she has somehow offered sufficient evidence from which a reasonable jury could find pretext. The Court should decline that invitation. Case 2:15-cv-00419-WHA-GMB Document 57 Filed 03/31/17 Page 30 of 33 31 long unblemished career does not compel the conclusion that the employer must have been acting not for its stated reason but for an improper one. ALDOT has never justified its actions with respect to Duncan by arguing that she had a history of disciplinary or performance problems. Instead, ALDOT acted because information came to light regarding what it believed to be improper conduct in which Duncan engaged in 2013. The documentation of the reason for the action does not suggest anything other than Duncan’s conduct resulted in her performance scores on her appraisal or her demotion. Here, Duncan did not dispute the existence of any of the work rules she was found to have violated. She merely disagreed that she violated them and quibbled with the severity of the punishment she received. Her approach ignored the line of cases indicating that “[t]he inquiry into pretext centers on the employer’s beliefs, not the employee’s beliefs and to be blunt about it, not on reality as it exists outside of the decision maker’s head.” Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1266 (11th Cir. 2010). Even if an employer disciplined an employee who did not violate a work rule, it cannot be said to have discriminated or retaliated against an employee if it acted based on a good faith belief that the employee violated a work rule. See, e.g., Feise v. N. Broward Hosp. Dist., No. 15-15261, 2017 WL 1101402, at *6 (11th Cir. Mar. 24, 2017) Where, as here, the employer conducted an internal investigation, “[the Court’s] inquiry is limited to whether the employer’s ‘choice is an honest choice,’ i.e., whether the employer acted in good faith and had reasonable grounds to believe the disciplined employee engaged in the misconduct.” Ekokotu v. Fed. Exp. Corp., 408 F. App’x 331, 339 (11th Cir. 2011) (quoting E.E.O.C. v. Total Sys. Servs., Inc., 221 F.3d 1171, 1176 (11th Cir. 2000)). Duncan utterly failed to point to evidence from which a reasonable jury could question that Woodham acted in good faith and had reasonable grounds utterly unrelated to any recommendation from Brendle or Flowers on Case 2:15-cv-00419-WHA-GMB Document 57 Filed 03/31/17 Page 31 of 33 32 which to believe that Duncan engaged in misconduct requires summary judgment for Defendants on any retaliation claim. CONCLUSION Duncan failed to identify and dispute as to any material fact. Even if the Court views the facts in the record18 in the light most favorable to Duncan, those facts do not require trial. Nothing Duncan argued in opposition to Defendants’ summary judgment submissions warrants denying any part of Defendants’ motion. Defendants are entitled to judgment as a matter of law as to all of Duncan’s claims. Defendants respectfully submit that their motion should be granted and all of Duncan’s claims should be dismissed with prejudice. Respectfully submitted this 31st day of March, 2017. /s/ Barbara J. Wells BARBARA J. WELLS (ASB-1658-R58B) CLINTON A. RICHARDSON (ASB-0876-H41T) OF COUNSEL: CAPELL & HOWARD, P.C. 150 South Perry Street (36104) Post Office Box 2069 Montgomery, AL 36102-2069 Telephone: (334) 241-8000 Facsimile: (334) 323-8888 Email: Barbara.Wells@chlaw.com Email: Clinton.Richardson@chlaw.com /s/ Stacey S. Houston STACEY S. HOUSTON (HOU088) Assistant Attorney General Acting Chief Counsel 18 Defendants request that the Court rely on the actual testimony and documents in the factual record before it as Duncan’s brief mischaracterized some facts and testimony and asserted the existence of some facts not in the record. Case 2:15-cv-00419-WHA-GMB Document 57 Filed 03/31/17 Page 32 of 33 33 STATE OF ALABAMA DEPARTMENT OF TRANSPORTATION 1409 Coliseum Blvd. Montgomery, AL 36110 Telephone: (334) 242-6350 Facsimile: (334) 264-4359 Email: Houstons@dot.state.al.us Attorneys for Defendants CERTIFICATE OF SERVICE I hereby certify that on this 31st day of March, 2017, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to all counsel of record, including the following: Roderick T. Cooks, Esq. WINSTON COOKS, LLC The Financial Center 505 20th Street North, Ste. 815 Birmingham, AL 35203 Email: rcooks@winstoncooks.com Charity M. Davis, Esq. GILCHRIST | DAVIS 505 20th Street North, Suite 815 Birmingham, AL 35203 Email: charity@gilchristdavis.com /s/ Barbara J. Wells OF COUNSEL Case 2:15-cv-00419-WHA-GMB Document 57 Filed 03/31/17 Page 33 of 33