Flowers v. City of Tuscaloosa

YOLONDA FLOWERS, Plaintiff,

v.CITY OF TUSCALOOSA, Defendant.

7:11-cv-01375-JEO

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA WESTERN DIVISION

DONE: February 14, 2013

MEMORANDUM OPINION

This is an employment discrimination case. Plaintiff Yolanda Flowers ("Plaintiff") claims that the City of Tuscaloosa, Alabama (the "City") is liable under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.; 42 U.S.C. § 1983 ("Section 1983"); and Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq., for disability discrimination and retaliation, as well as under Alabama tort law for infliction of emotional distress. (Doc.¹ 1 ("Complaint" or "Compl.")). The cause comes to be heard on the City's motion for summary judgment. (Doc. 22). Counsel for the parties have fully briefed the issues. (See Docs. 20 & 22, Motion for Summary Judgment by Defendant City of Tuscaloosa ("Dft. Summ. J. Mot."); Doc. 23, Plaintiff's Memorandum in Opposition to the Defendant's Motion for Summary Judgment ("Pl. Opp. Brief"); Doc. 24, Defendant's Reply Submission ("Dft. Reply Brief")). Upon consideration, the court² concludes that the City's motion for summary judgment is due to be granted.

I. SUMMARY JUDGMENT STANDARDS

Pursuant to Rule 56 of the FEDERAL RULES OF CIVIL PROCEDURE, party is authorized to move for summary judgment on all or part of a claim or defense asserted either by or against the movant. Under that rule, the "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. PROC. 56(a), Fed. R. Civ. The party moving for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion," relying on submissions "which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). Once the moving party has met its burden, the nonmoving party must "go beyond the pleadings" and show that there is a genuine issue for trial. Celotex Corp., 477 U.S. at 324.

Both the party "asserting that a fact cannot be," and a party asserting that a fact is genuinely disputed, must support their assertions by "citing to particular parts of materials in the record," or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." FED. R. CIV. PROC. 56(c)(1)(A) & (B). Acceptable materials under Rule 56(c)(1)(A) include "depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." In its review of the evidence, a court must credit the evidence of the non-movant and draw all justifiable inferences in the non-movant's favor. Stewart v. Booker T. Washington Ins., 232 F.3d 844, 848 (11th Cir. 2000). At summary judgment, "the judge'sfunction is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

II. FACTS³

Plaintiff is a black woman who worked for the City as a custodian. She started in June 2001. (Deposition of Plaintiff Yolanda Flowers ("Pl. Dep.")⁴ at 77-79). Plaintiff claims that, even before then, she had suffered from "mental problems." (Id. at 89). She explains that she was "depressed a lot" and "sad" about "the environment that [she] grew up in," which "took a toll" on her. (Id. at 89-90).

During the first few years of her employment with the City, Plaintiff applied for several other posted jobs besides custodian. Sometime between 2001 and 2003, for example, she applied for a 911 dispatcher position but was not selected. (Id. at 187-88). Plaintiff also applied some seven times to be a Parking Control Officer, with the last of those coming in July 2005. (Id. at 178, 184-86). She was interviewed on about five or six of those occasions but, again, was never selected. (Id.) In December 2006, she was likewise rejected a position as a "311" information operator. (Id. at 178, 188-89). Finally, at some unspecified time, Plaintiff applied with the Department of Transportation for a job whose duties included installing toilets. (Id. 178-80). Before being interviewed for that post, however, Plaintiff voluntarily withdrew her name from consideration. (Id. at 181).

In 2005, the City reassigned Plaintiff to perform custodial work at the Water Distribution Division of the Water and Sewer Department. While there in April 2007, she was in a break room when she heard a Water Distribution crew employee, William Nalls, loudly remark to two male co-workers as they were walking in that the reason why "white women ... always get butt fucked and raped" is because they go "jogging in the park." (Pl. Dep. at 191-94). Plaintiff approached Nalls's supervisor and complained about the remark. (Id.) The issue reached the Human Resources Department, which promptly performed an investigation and provided sexual harassment training to the members of the department. (Id. at 197-203). Plaintiff acknowledges that is just what she had asked the City to do and that she was satisfied with that resolution. (Id. at 203-06).

Several months later, according to the City's Associate Director of Facilities Maintenance, Doug Bullard ("Doug"⁵ ), the City reorganized the deployment of its custodians and assigned several of its buildings to a newly created "mobile crew." (Affidavit of Doug Bullard ("D. Bullard Aff."), Doc. 20-11, at 3; see also Pl. Dep. at 207). One of the buildings to which the mobile crew was to be assigned was the Water Distribution area where Plaintiff was working. (Pl. Dep. at 207). The City offered Plaintiff a position on the mobile crew, but she declined because its schedule would not have allowed her to be home each day when her children returned from school. (Id.) Following her refusal, Plaintiff's supervisor, Floyd Spencer, reassigned her on July 11, 2007, to perform cleaning duties at the City's Airport Terminal. (D. Bullard Aff. at 3; Pl. Dep. at 207-08, 213).

On October 22, 2007, Plaintiff filed an EEOC charge against the City, her first. (Doc. 20-9 at 9 ("the 2007 EEOC Charge")). Plaintiff there asserted that her reassignment to the airport amounted to adverse action taken in retaliation for her sexual harassment complaint about Nalls, in violation of Title VII. On March 23, 2008, the EEOC dismissed that charge and issued Plaintiff a right-to-sue notice. (Doc. 20-9 at 10). Plaintiff did not file a timely suit on that charge.

As early as 2003, Plaintiff had received counselings from her superiors regarding misconduct and work rule violations. On February 17, 2003, Plaintiff received an "oral warning" from her supervisor, Floyd Spencer, for "conduct unbecoming a city employee" and exhibiting an "attitude toward a department head that [was] not acceptable." (Doc. 20-9 at 19). On March 9, 2004, Spencer administered a "verbal counseling" to Plaintiff about her consistent use of "[AVAIL]⁶ time and being absent from work with unpaid leave." (Doc. 20-9 at 20 (footnote added)). Likewise, in November 2007, while Plaintiff's 2007 EEOC Charge was pending, the Manager of the Airport Terminal, Wayne Cameron, voiced complaints about Plaintiff to her supervisors. (D. Bullard Aff. at 3; Pl. Dep. at 219-21). In particular, Cameron reported that Plaintiff was often tardy, that her cleaning work was rushed and substandard, and that she spent a lot of time sitting outside in her car talking on her cell phone. (D. Bullard Aff. at 3). As a result, Plaintiff's supervisors counseled her on or about November 28, 2007. (Id.) Plaintiff also contends that some unspecified point, she noticed that her City supervisor, Spencer, began to appear at the airport "quite often" and to closely monitor her work. (Pl. Dep. at 226-27).Spencer, she says, "would hide a lot[,] and you would see him standing somewhere peeking at you." (Id. at 225-26).

In late August 2008, after the City had again acquired more office space, Plaintiff was again displaced from her assignment when the City designated the mobile crew to clean the Airport Terminal. (D. Bullard Aff. at 3; Pl. Dep. at 222). The City reassigned Plaintiff to the City Hall Annex and the Municipal Court building. (Id.) Plaintiff claims that while she was working that assignment Spencer continued to closely monitor and check her work. (See Pl. Dep. at 225-32). Plaintiff explains that when she was at City Hall, "it seemed like he was always there and not checking up on the other employees like [the custodians working] at the Police Department." (Id. at 227). "At one point," Plaintiff alleges, "[Spencer] began using a camera to take photographs of areas where work had not been done properly." (Id. at 229). Plaintiff also states that one time she "and [other] girls [on the custodial crew at City Hall] were in the attic and [Spencer] was up there fumbling with his camera." (Id. at 231).

Similar behavior was involved in a strange incident that occurred on December 26, 2008. That morning, Plaintiff arrived at City Hall and started cleaning in the Fire Department area. (Pl. Dep. at 232-33). Plaintiff then proceeded down to the basement with her supply cart to clean the bathrooms there. (Id. at 234-36). In the basement, Plaintiff worked her way through a dimly lit, secluded hallway. When she turned on a light, she became frightened when, looking through a vent on a closed supply closet door, she saw someone's hand holding what looked like a circular object that followed her as she moved. (Id. at 237-38, 242-44). Plaintiff ducked,...