Miles v. Birmingham, City of

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MARIA MILES, }

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Plaintiff, }

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v. } Case No.: 2:17-CV-1156-RDP

}

CITY OF BIRMINGHAM, et al., }

}

Defendants. }

MEMORANDUM OPINION

This sexual harassment and retaliation action involves an admitted two-year, sexual

relationship between Plaintiff, Maria Miles, and her superior, Charlie Williams, during their

employment with the City of Birmingham (“the City”) and Plaintiff’s subsequent resignation in

March 2016. The City and Williams have each filed Motions for Summary Judgment. (Docs. # 16,

17).1

The court recognizes that unwanted sexual attention in the workplace is a concern that

rightly occupies the minds of both employers and employees. In addressing workplace

discrimination disputes, judges (including the undersigned) must be keenly aware that sexual

harassment is an acute problem that affects our society. Having said that, the court is duty-bound

to examine the facts of each case under the legal framework which the Supreme Court and the

Eleventh Circuit have established. With these concerns in mind, the court has carefully considered

1 The Motions have been fully briefed (Docs. # 22-23, 33-34) and are ripe for decision. The court makes one

initial note about the parties’ briefing responsibilities. The Initial Order (Doc. # 6), entered on August 10, 2017,

requires all summary judgment briefing to comply with Appendix II to the Order. Plaintiff’s opposition briefs to

Defendants’ motions for summary judgment (Docs. # 22, 23) fail to comply with Appendix II in that the Narrative

Statements of Facts do not indicate which facts are disputed or undisputed. Nevertheless, the court has carefully

studied the Rule 56 record to parse out the disputed and undisputed facts. However, this is the job of counsel, not the

court. Plaintiff’s counsel is cautioned that any further summary judgment briefing in this court, not just in this case,

shall follow the requirements of Appendix II or counsel will be ordered to re-brief the subject filing.

Plaintiff’s claims and the summary judgment record. However, no evidence in the Rule 56 record

suggests that Plaintiff’s two-year relationship with Williams was unwelcome. Accordingly, for the

reasons more thoroughly explained below, Defendants’ Motions for Summary Judgment (Docs. #

16, 17) are due to be granted.

I. Factual Background2

First, the court discusses the Rule 56 evidence regarding Plaintiff’s relationship with

Williams and its effect on her employment. Second, the court outlines the summary judgment

evidence regarding the actions the City took to prevent sexual harassment in the workplace.

Finally, the court addresses the circumstances surrounding Plaintiff’s resignation and her filing of

a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”).

A. Plaintiff’s Employment with the City and Her Relationship with Defendant

Williams

Plaintiff worked in the City’s Department of Public Works from November 27, 2013 until

March 16, 2016. (Docs. # 22-1 at 23). Although she started as a temporary truck driver, Plaintiff

was promoted several times and eventually attained the position of Maintenance Supervisor. (Id.

at 165). From February 2014 to December 1, 2017, Williams was the Deputy Director of the

Department of Public Works and had supervisory authority over Plaintiff at various points in her

employment. (Docs. # 22-2 at 7, 25; 16-2).

Plaintiff first met Williams around February 2014 when he investigated two of Plaintiff’s

coworkers for employee misconduct. (Docs. # 22-2 at 34). Plaintiff explained the incident to

Williams, and Williams ultimately recommended that the two employees be terminated. (Id.).

2 The facts set out in this opinion are gleaned from the parties’ submissions and the court’s own examination

of the evidentiary record. All reasonable doubts about the facts have been resolved in favor of the non-moving party.

See Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002). These are the “facts” for

summary judgment purposes only. They may not be the actual facts that could be established through live testimony

at trial. See Cox v. Adm’r U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th Cir. 1994).

After this initial contact, Plaintiff continued to act as a “confidential informant” for Williams when

employees committed violations of City policies. (Id.).

Over the course of the next few weeks, Plaintiff and Williams flirted via text message. (Id.

at 35). In early 2014, Plaintiff accepted Williams’s invitation to have dinner with him outside of

work. (Doc. # 22-1 at 42-43). Prior to their date, Williams had never used vulgar language or made

inappropriate advances toward her. (Id. at 42). Shortly after their dinner, Plaintiff and Williams

had their first sexual encounter. (Id. at 44-47). Plaintiff did not push Williams away or reject his

advances. (Id. at 46).

Thereafter, Plaintiff and Williams participated in a two-year relationship, which ended in

approximately April 2016. (Id. at 49). They talked on the phone and texted each other every day.

(Id. at 51-52). In fact, Plaintiff initiated many of these communications herself, including asking

Williams when he would come to her apartment. (Id. at 54, 66). On several occasions, Plaintiff

allowed Williams to stay overnight without engaging in any sexual activity. (Id. at 55-57).

Williams frequently visited on the weekends and developed a relationship with Plaintiff’s youngest

daughter. (Id. at 60-61). “[H]e would talk to her, let her play with his phone,…[and] give her

money.” (Id. at 61). Plaintiff also introduced Williams to her son and her sister. (Id. at 68).

To celebrate her one-year anniversary with Williams, Plaintiff suggested and planned a trip

to Anniston. (Id. at 63-65). Plaintiff drove and paid cash for their hotel stay, while Williams paid

for their meals. (Id. at 64; Doc. # 22-2 at 35). Shortly after their trip, Plaintiff told Williams she

loved him and gave him a key to her apartment. (Id. at 65, 72). He did not ask for the key, but

Plaintiff thought “it would be easier” for him to “come on in and not have to worry about [her]

falling asleep or anything like that.” (Id. at 72). She also told one of her coworkers that she was in

love with Williams. (Id. at 65-66). Periodically, Williams called her “Mush Cake,” and Plaintiff

would respond with “Mush Cake miss you.” (Id. at 67).

During work hours, Williams would greet Plaintiff by saying “hey, cutie” or “hey, sexy.”

(Id. at 83). On at least one occasion, he told a friend over the phone that “he was watching this

sexy, young thang cut grass,” referring to Plaintiff. (Id.). Plaintiff was not offended by this conduct.

(Id.). Instead, she smiled. (Id.). According to Plaintiff, Williams also “rubbed [her] butt” at work

“once or twice.” (Id. at 84). Again, Plaintiff was not offended and only told him to stop because

“somebody could have [seen] him.” (Id. at 84-85).

Plaintiff testified that even when he was not acting as her direct supervisor, Williams

sometimes contacted her supervisors to change her daily work assignments. (Id. at 141-42, 158-

61). He hovered near Plaintiff at job locations, drawing the attention of her coworkers. (Id. at 140-

41). If Williams did not know where Plaintiff was assigned on a particular day, “he would call the

radio” or “call [Plaintiff’s] phone. If [she] didn’t answer, he would continue to call.” (Id. at 141).

Plaintiff felt that Williams took credit for her career advancement. (Id. at 146-47). Specifically, he

advised her about what certifications she needed to be considered for a position (Id. at 164-65) and

recommended her for promotions to her supervisors (Id. at 164).3

At no point in their relationship did Plaintiff communicate to Williams that his advances

or their sexual encounters were unwelcome. (Id. at 74, 88-89). Plaintiff testified at her deposition

that “[Williams] wouldn’t have [known the relationship was unwelcome] because I never gave

him any indications because of what I thought he might do to me. So I kept it as if everything was

okay, but it wasn’t.” (Id. at 88-89).

3 The court notes that Williams denies interfering with Plaintiff’s daily work assignments or recommending

her for promotions. (Doc. # 22-2 at 96, 144-47). But, for purposes of Rule 56, this is a disputed matter and the court

accepts Plaintiff’s version as true.

Williams never directly threatened Plaintiff by telling her there would be consequences

affecting her career if she ended the sexual relationship. (Id. at 90). But, Plaintiff testified that she

felt indirectly threated because Williams implied that he had control over her job by saying “how

you got to where you got. Its because of me. I’m the one that helped you [get] there…And

everything I say do, that’s what you do, and don’t pay them any attention.” (Id. at 90-91).

According to Plaintiff, “[h]is favorite saying was let nobody take your power.” (Id. at 138).

B. The City’s Sexual Harassment Policies and Response to the Relationship

During orientation, the City gives all new employees a copy of the City’s Sexual and

Gender Harassment Policy and explains how to report harassment. (Doc. # 16-6 at 28-29). The

Sexual and Gender Harassment Policy provides in pertinent parts:

It is the policy of the City of Birmingham that sexual or gender harassment of City

employees or applicants for City employment is strictly prohibited and shall be

grounds for dismissal.

…

Sexual harassment for purposes of this policy is defined as unwelcome sexual

advances, requests for sexual favors, and other verbal or physical conduct of a

sexual nature when:

(a) Submission to such conduct is made either explicitly or implicitly a term or

condition of an individual’s employment; or

(b) Submission to or rejection of such conduct by an individual is used as the

basis for employment decisions affecting such individual; or

(c) Such conduct has the purpose or effect of interfering with an individual’s

work.

Individuals who feel that they have been sexually harassed are encouraged to take

action themselves in a rational and responsible way.

…

Other Actions:

(a) Report incidents of sexual harassment to your supervisor, your supervisor’s

superior, or the City’s Human Resources Department.

…

Supervisors can be held personally liable if they:

(a) Make sexual advances.

(b) Use sex as an expression of power or dominance.

(c) Suggest that sexual favors are a condition of employment.

(d) Discriminate as to gender.

(e) Otherwise create a hostile work environment or condone sexual or gender

harassment in the workplace.

(Doc. # 16-8 at 1-4).

On December 12, 2013, Plaintiff received a copy of the Sexual and Gender Harassment

Policy at her new employee orientation. (Docs. # 22-1 at 86-87; 16-3). Plaintiff also signed an

acknowledgement form that states: “If I feel I am being harassed, I have a right and responsibility

to communicate this directly to the alleged harasser, my supervisor, department head, a non-

involved supervisor, the City’s Personnel Office and/or seek resolution through the grievance and

complaint procedures of the Rules and Regulations of the Jefferson County Personnel Board.”

(Doc. # 16-3).

In January 2015, the City conducted a mandatory training session with all employees,

including Department Directors and Deputy Directors. (Doc. # 16-6 at 29-30). City officials

instructed attendees on the provisions of the Sexual and Gender Harassment Policy and provided

examples of conduct constituting sexual harassment. (Id.). Plaintiff attended this session and

signed another acknowledgement form certifying that she had neither suffered nor was aware of

any conduct at her work station “that would constitute sexual or gender harassment under the

[Policy] within six months of the date of this certification.” (Doc. # 16-4).

Moreover, Plaintiff personally discussed the Policy with the Director of Public Works,

Stephen Fancher. (Docs. # 22-1 25-26; 16-7). In fact, Fancher approached Plaintiff two or three

times following complaints from her coworkers about her relationship with Williams. (Doc. # 22-

1 at 17-18, 98, 107-109). Plaintiff testified at her deposition that on one occasion, Fancher called

her after hours with two other employees listening on the line to ask whether there was anything

happening between her and Williams. (Id. at 18, 152-53). In Plaintiff’s view, Fancher’s tone

implied a statement, rather than a question—as if he was instructing her to answer in the negative.

(Doc. # 22-1 at 153). Plaintiff answered no. (Id.). Twice, Fancher directly asked Plaintiff whether

she was having a relationship with Williams. (Id. at 18, 153-54). Each time, she denied the

relationship. (Id. at 18). During one of these conversations, Fancher informed Plaintiff that

Williams was a married man with two children. (Id. at 50, 154). Fancher also instructed Williams

to stay away from Plaintiff. (Id. at 17).

Despite her awareness of the City’s Sexual and Gender Harassment Policy and the different

avenues for reporting sexual harassment, Plaintiff never utilized any of these reporting

mechanisms. (Id. at 180-81). When asked how the City would have known that she was having an

unwelcome relationship with Williams, Plaintiff responded, “They wouldn’t have because I didn’t

say anything to anybody because of the conversations that I had with Mr. Williams and the

statements that Mr. Williams had made to me saying he put me where I was and Fancher had

nothing to do with it.” (Id. at 89). Plaintiff testified that she did not tell her supervisors about the

relationship because she feared Williams would retaliate against her: “I’ve seen how he's done

other employees when they’ve done something to him or said anything about anybody, the way

that he would target them, have them written up.” (Id. at 13). Consequently, prior to the filing of

Plaintiff’s EEOC charge, the City never received notice that Plaintiff was either subjected to an

allegedly hostile work environment or forced to participate in an unwelcome relationship. (Doc. #

16-6 at 28).

C. Plaintiff’s Resignation and EEOC Charge

In late 2015 or early 2016, Plaintiff’s coworker, Fatuma Robinson, approached Plaintiff to

complain about nepotism in the City’s hiring practices. (Docs. # 22-1 at 22-24; 16-2). In her

deposition, Plaintiff explained that Robinson was upset about “not being hired with the City and

that the other supervisor had got her daughters on. And she knew that the daughters were not being

hired, and Ms. Fatuma felt that that caused a problem as far as her being discriminated against.”

(Doc. # 22-1 at 22-23). Plaintiff advised Robinson to first take her complaint to Fancher, then to

the EEOC. (Id. at 23-24, 28-29, 122-23, 155-56).4

On March 16, 2016, Fancher called Plaintiff to his office to question her about reports that

Plaintiff was telling her coworkers to bring their sexual harassment claims directly to the EEOC.

(Id. at 25-27, 155-57; Doc. # 16-7). He read from the City’s Sexual and Gender Harassment Policy,

but he did not directly ask Plaintiff about Robinson’s complaint. (Id.). Plaintiff responded that she

had not talked with other employees about sexual harassment. (Id. at 37-38; Doc. # 16-7). She did

not tell Fancher about her conversations with Robinson because she wanted to protect Williams.

(Doc. # 22-1 at 156-57). Plaintiff left the meeting thinking her professional relationship with

Fancher had suffered, but she did not feel as though her job was in jeopardy. (Id. at 38).

Furthermore, the City did not initiate any discipline against Plaintiff. (Id. at 31). Plaintiff turned in

her resignation letter on March 18, 2016, citing “personal reasons” as the cause for her decision.

(Doc. # 16-5).

4 The Rule 56 record is unclear as to what Robinson specifically complained of. It seems as though she

considered the City’s refusal to hire her daughters to be an uneven application of the City’s (official or unofficial)

policy on nepotism. Regardless, the factual details of her complaint are immaterial to this court’s analysis. As

explained more thoroughly below, nepotism is not an unlawful employment practice under Title VII. Even if it was,

the Rule 56 record does not demonstrate that Plaintiff engaged in any statutorily protected activity or suffered any

adverse employment action as a result.

There is conflicting Rule 56 evidence about what happened after Plaintiff’s meeting with

Fancher on March 16, 2016. Plaintiff testified that Williams called her and told her she needed to

resign before the City had a chance to fire her. (Id. at 34-36). And, she claims that Williams’s

advice that she should resign was the only reason she actually did so. (Doc. # 22-1 at 35-36).

According to Plaintiff, there were no other reasons motivating her resignation and absent that call,

she would not have resigned. (Id.). By contrast, Williams testified that he had nothing to do with

her resignation. (Doc. # 22-2 at 175). He specifically denied discussing Plaintiff’s resignation with

her before she resigned. (Id. at 205-206).

Plaintiff’s sexual relationship with Williams continued after her resignation. (Id. at 73-74).

She testified that they had two sexual encounters after March 18, 2016. (Id.). Once it became clear

that Williams could not help her get reinstated, Plaintiff ended the relationship in April 2016, about

a month after her resignation. (Id. at 74-80).5

On July 5, 2016, Plaintiff filed a Charge of Discrimination with the EEOC. (Doc. # 22-8).

Her charge asserts that Williams subjected her to a hostile work environment between April 2014

and March 2016 when he told her to resign. (Id.). About a year later, Plaintiff received her right-

to-sue and filed the Complaint initiating this case on July 11, 2017. (Doc. # 1).6

II. Standard of Review

Under Federal Rule of Civil Procedure 56, summary judgment is proper “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party

5 Williams confirmed that their sexual relationship ended in April 2016, but he testified that they continued

to communicate until about June 2016. (Doc. # 22-2 at 200-204).

6 The Rule 56 record does reveal the specific date on which Plaintiff received her right-to-sue letter.

asking for summary judgment always bears the initial responsibility of informing the court of the

basis for its motion and identifying those portions of the pleadings or filings which it believes

demonstrate the absence of a genuine issue of material fact. Id. at 323. Once the moving party

has met its burden, Rule 56 requires the non-moving party to go beyond the pleadings and -- by

pointing to affidavits, or depositions, answers to interrogatories, and/or admissions on file --

designate specific facts showing that there is a genuine issue for trial. Id. at 324.

The substantive law will identify which facts are material and which are irrelevant. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Anderson”). All reasonable doubts

about the facts and all justifiable inferences are resolved in favor of the non-movant. See Allen v.

Bd. of Pub. Educ. for Bibb Cty., 495 F.3d 1306, 1314 (11th Cir. 2007); Fitzpatrick v. City of

Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If

the evidence is merely colorable, or is not significantly probative, summary judgment may be

granted. See id. at 249.

When faced with a “properly supported motion for summary judgment, [the nonmoving

party] must come forward with specific factual evidence, presenting more than mere allegations.”

Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997). As Anderson teaches, under

Rule 56(c) a plaintiff may not simply rest on her allegations made in the complaint; instead, as the

party bearing the burden of proof at trial, she must come forward with at least some evidence to

support each element essential to her case at trial. See Anderson, 477 U.S. at 252. “[A] party

opposing a properly supported motion for summary judgment ‘may not rest upon the mere

allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a

genuine issue for trial.’” Id. at 248 (citations omitted).

Summary judgment is mandated “against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party’s case, and on which that party will

bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. “Summary judgment may be

granted if the non-moving party’s evidence is merely colorable or is not significantly probative.”

Sawyer v. Sw. Airlines Co., 243 F. Supp. 2d 1257, 1262 (D. Kan. 2003) (citing Anderson, 477 U.S.

at 250-51).

“[A]t the summary judgment stage the judge’s function is not himself to weigh the evidence

and determine the truth of the matter but to determine whether there is a genuine issue for trial.”

Anderson, 477 U.S. at 249. “Essentially, the inquiry is ‘whether the evidence presents a sufficient

disagreement to require submission to the jury or whether it is so one-sided that one party must

prevail as a matter of law.” Sawyer, 243 F. Supp. 2d at 1262 (quoting Anderson, 477 U.S. at 251-

52); see also LaRoche v. Denny’s, Inc., 62 F. Supp. 2d 1366, 1371 (S.D. Fla. 1999) (“The law is

clear . . . that suspicion, perception, opinion, and belief cannot be used to defeat a motion for

summary judgment.”).

III. Analysis

After careful review, and for the reasons explained below, the court concludes that

Defendants are entitled to summary judgment on all of Plaintiff’s federal claims under Title VII.

As a result, the court declines to exercise supplemental jurisdiction over Plaintiff’s remaining state

law claims. See 28 U.S.C. § 1367(c)(3).

A. The City is Due Summary Judgment on Plaintiff’s Title VII Sexual

Harassment and Hostile Work Environment Claim

Title VII prohibits employers from discriminating “against any individual with respect to

[her] compensation, terms, conditions, or privileges of employment, because of such

individual’s…sex.” 42 U.S.C. § 2000e–2(a)(1). An actionable sex-based violation of Title VII may

be committed in one of two ways: (1) “through tangible employment action” (often referred to as

quid pro quo harassment) or (2) “through creation of a hostile work environment caused by sexual

harassment that is sufficiently severe or pervasive to alter the terms and conditions of the work.”

Osburn v. Hagel, 46 F. Supp. 3d 1235, 1241 (M.D. Ala. 2014) (citing Nurse “BE” v. Columbia

Palms W. Hosp., Ltd. P’ship, 490 F.3d 1302, 1308 (11th Cir. 2007)). If the Rule 56 record indicates

that an employer did not take any tangible employment action against a plaintiff, the employer is

entitled to invoke the Faragher/Ellerth affirmative defense to a claim asserted under the hostile

work environment theory. Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington

Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998). In her response brief, Plaintiff argues that the

City’s conduct constituted sexual harassment under both theories.7 (Doc. # 22 at 11-20). The court

addresses each theory in turn and concludes that the City is entitled to summary judgment on

Plaintiff’s sexual harassment claim.

i. Tangible Employment Action

A tangible employment action involves “a significant change in employment status, such

as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a

decision causing a significant change in benefits.” Vance v. Ball State Univ., 570 U.S. 421, 429

(2013) (citing Ellerth, 524 U.S. at 761). “The test for an adverse employment action in a disparate

treatment context is similar to the one for a tangible employment action in a harassment analysis.”

Hyde v. K.B. Home, Inc., 355 F. App'x 266, 271 (11th Cir. 2009) (equating standards for adverse

employment action and tangible employment action); see also Webb-Edwards v. Orange Cnty.

Sheriff’s Office, 525 F.3d 1013, 1031 (11th Cir. 2008) (same). The City argues that there was no

7 Although Plaintiff focuses the vast majority of her arguments on the hostile work environment theory of

sexual harassment, out of an abundance of caution, the court first addresses Plaintiff’s claim under a tangible

employment action theory.

tangible employment action against Plaintiff because she voluntarily resigned citing “personal

reasons.” (Docs. # 16 at 23; 16-5). Plaintiff counters that the City, through Williams, took at least

two tangible employment actions with respect to her employment: (1) Williams’s advice to

Plaintiff that she should resign and (2) Williams’s active assistance to Plaintiff in securing several

promotions. (Doc. # 22 at 16-17). For the reasons explained below, the court agrees with the City

and finds that the tangible employment action theory is inapplicable in this case.

First, the Rule 56 evidence does not establish that Williams’s advice (or even instruction)

to Plaintiff to resign amounted to a tangible employment action. Critically, a “normal voluntary

resignation” is not considered a tangible employment action. See Jones v. USA Petroleum Corp.,

20 F. Supp. 2d 1379, 1383 (S.D. Ga. 1998); see also Williams v. Ala. Dep’t of Corr., 649 Fed.

Appx. 925, 928 (11th Cir. 2016) (noting that voluntary resignations do not constitute an adverse

employment action). Plaintiff insists that her resignation was neither “normal” nor voluntary

because Williams “falsely [claimed] that she was about to be fired.” (Doc. # 22 at 16-17). To be

sure, Williams disputes Plaintiff’s version of the facts and denies even speaking to her before she

turned in her resignation letter. (Doc. # 22-2 at 175, 205-206). The court must credit Plaintiff’s

version of the facts for summary judgment purposes. But, even if Williams instructed Plaintiff to

resign, that would still not constitute a tangible employment action because the choice to resign

was ultimately left to Plaintiff. See Hargray v. City of Hallandale, 57 F.3d 1560, 1568 (11th Cir.

1995) (“[R]esignations can be voluntary even where the only alternative to resignation is facing

possible termination for cause or criminal charges.”). In other words, even crediting Plaintiff’s

testimony, Williams gave her advice that she should resign, but it was not Williams’s advice that

“significantly change[d] [her] employment status.” Vance, 570 U.S. at 429. Rather, it was her

decision to heed that advice. On this record, Plaintiff has failed to show that her resignation was

anything but voluntary.

Under circumstances such as this (where a plaintiff has resigned her employment), for such

a resignation to qualify as a tangible employment action, a plaintiff must show that a constructive

discharge occurred, meaning that her employer made working conditions so intolerable that she

was “forced” to resign. See Kilgore v. Thompson & Brock Management, Inc., 93 F.3d 752, 754

(11th Cir. 1996). In her Amended Complaint, Plaintiff briefly alleges that she was “constructively

discharged because tangible employment actions from a supervisor or person acting with the

authority of the Defendant City created an environment that forced her to resign.” (Doc. # 30 at ¶

31). However, Plaintiff has not presented the court with any additional argument in her briefing to

support this allegation. And, more significantly, the Rule 56 record does not indicate that she was

effectively “forced” to resign. To be sure, Plaintiff testified that following her conversation with

Fancher, she did not think her job was in jeopardy. (Doc. # 22-1 at 38). She also testified that

Williams’s call telling her to resign was the only reason she resigned. (Doc. # 22-1 at 35-36).

According to Plaintiff, there were no other reasons motivating her resignation, including any

alleged sexual harassment. (Id.). Also fatal to any constructive discharge claim, Plaintiff never

formally complained to either Williams or the City to give them an opportunity to remedy her

working conditions. (Docs. # 22-1 at 89, 180-81; 16-6 at 28). See Kilgore, 93 F.3d at 754 (affirming

summary judgment because constructive discharge is not viable if the employer is not given

sufficient time to remedy the situation). Consequently, Plaintiff has failed to establish that the City

took any tangible employment action against her with respect to her resignation.

Second, the Rule 56 evidence does not suggest that whatever assistance Williams provided

Plaintiff in securing several promotions constitutes any type of a tangible employment action. As

stated above, “[t]he test for an adverse employment action in a disparate treatment context is

similar to the one for a tangible employment action in a harassment analysis.” Hyde, 355 F. App'x

at 271. The necessary implication, then, is that the employment action must be “adverse.” “An

employment action is considered ‘adverse’ only if it results in some tangible, negative effect on

the plaintiff's employment.” Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1261 (11th Cir. 2001).

Helping Plaintiff to obtain a promotion cannot be characterized adverse because it had a positive

effect on her employment. Indeed, the contemplated tangible employment action under Ellerth is

the denial of a promotion. 524 U.S. at 761.

Finally, nothing in the Rule 56 record indicates that Plaintiff suffered any quid pro quo

sexual harassment. Quid pro quo sexual harassment exists when “submission to sexual conduct is

either explicitly or implicitly a term or condition of an individual's employment, or when

submission to or rejection of such conduct by an individual is used as the basis for employment

decisions affecting such individual.” Sparks v. Reg'l Med. Ctr. Bd., 792 F. Supp. 735, 742 (N.D.

Ala. 1992) (internal quotations omitted). Under such circumstances, an employer is strictly liable

for the actions of its supervisors because the harassing supervisor typically acts “within at least the

apparent scope of the authority entrusted to him by the employer” in effectuating the harassment.

Id. at 743 (citing Henson v. City of Dundee, 682 F.2d 897, 910 (11th Cir. 1982). Although the Rule

56 record shows that Plaintiff and Williams engaged in a two-year sexual relationship, Plaintiff

acknowledges that Williams never told her there would be consequences affecting her career if she

ended the sexual relationship. (Id. at 90). There is also no evidence that Williams conditioned

whatever assistance he offered Plaintiff in securing promotions on her participation in the

relationship. The evidence clearly establishes that Williams “never demanded sexual favors from

[P]laintiff as a quid pro quo for job benefits nor made submission to sexual conduct a term or

condition of [her] employment.” Sparks, 792 F. Supp. at 745. Rather, as explained more

thoroughly below, the record demonstrates that Plaintiff welcomed the relationship. Because

submission to or rejection of Williams’s advances was never a quid pro quo to job benefits, the

City cannot be held liable under a quid pro quo sexual harassment theory.

Because Plaintiff has failed to demonstrate that she suffered any tangible employment

action that negatively impacted her employment, her only remaining avenue of relief on her sexual

harassment claim against the City is the hostile work environment theory, which the court

addresses below.

ii. Hostile Work Environment

A Title VII hostile work environment claim requires proof that “discriminatory

intimidation, ridicule, and insult [permeate the workplace in a manner] that is sufficiently severe

or pervasive to alter the conditions of the victim’s employment and create an abusive working

environment.” Williams v. United Launch All., LLC, 286 F. Supp. 3d 1293, 1302 (N.D. Ala. 2018)

(quoting Jones v. UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012)). In order to establish

a prima facie case under the hostile work environment theory, an employee must demonstrate: “(1)

that he or she belongs to a protected group; (2) that the employee has been subject to unwelcome

sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a

sexual nature; (3) that the harassment must have been based on the sex of the employee; (4) that

the harassment was sufficiently severe or pervasive to alter the terms and conditions of

employment and create a discriminatorily abusive working environment; and (5) a basis for

holding the employer liable.” Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 808 (11th

Cir. 2010). The City focuses on the unwelcomeness prong and argues that summary judgment is

appropriate because the Rule 56 evidence shows that Plaintiff and Williams were engaged in a

two-year, welcome, sexual relationship. (Doc. # 16 at 19-23).

“The gravamen of any sexual harassment claim is that the alleged sexual advances were

‘unwelcome.’” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 68 (1986) (citing 29 C.F.R. §

1604.11(a) (1985)). The conduct must be “unwelcome in the sense that the employee did not

solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or

offensive.” Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982). Furthermore, the

“voluntariness” of the employee’s participation in sexual intercourse is not dispositive. Meritor,

477 U.S. at 68. Rather, “[t]he correct inquiry is whether [the employee] by her conduct indicated

that the alleged sexual advances were unwelcome.” Id.

Plaintiff’s own testimony confirms that she willingly engaged in a two-year relationship

with Williams. (Doc. # 22-1 at 49). The relationship began in early 2014 (after weeks of flirting

via text messages), when Plaintiff accepted Williams’s invitation for dinner. (Id. at 35, 42-43).

Shortly thereafter, they had their first sexual encounter. (Id. 45-47). Plaintiff testified at her

deposition that Williams initiated the encounter by placing his hand on her knee. (Id. at 45). She

did not push his hand away or tell him to stop. (Id.). Williams then began kissing her; again, she

did not tell him to stop. (Id. at 46).

Throughout their relationship, the Rule 56 evidence shows that Plaintiff welcomed the

relationship. Plaintiff and Williams talked on the phone and texted each other every day. (Id. at

51-52). Though Plaintiff testified that she would occasionally avoid his calls, she initiated many

calls herself. (Id. at 53-54, 66). When asked if she ever contacted Williams to initiate any sexual

contact, she answered yes and explained that she would call him and ask if he planned on coming

over. (Id. at 66). Plaintiff invited Williams to spend the night at her apartment on at least three

occasions so that they could wake up together. (Id. at 55-57, 62). Williams frequently visited

Plaintiff’s apartment on the weekends and developed a relationship with her five-year-old

daughter. (Id. at 60-61). “[H]e would talk to her, let her play with his phone,…[and] give her

money.” (Id. at 61). Williams also met Plaintiff’s son and her sister. (Id. at 68).

Additionally, Plaintiff suggested and planned a trip to Anniston to celebrate with Williams

their one-year anniversary. (Id. at 63-65). Plaintiff drove and also paid cash for their hotel. (Id. at

64; Doc. # 22-2 at 35). Also telling, Plaintiff told Williams she loved him and gave him a key to

her apartment. (Id. at 65, 72). He did not ask for the key, but Plaintiff thought “it would be easier”

for him to “come on in and not have to worry about [her] falling asleep or anything like that.” (Id.

at 72). She also told one of her coworkers that she was in love with Williams. (Id. at 65-66).

Williams called her “Mush Cake,” and Plaintiff would respond with “Mush Cake miss you.” (Id.

at 67).

Plaintiff also testified that she was not offended by Williams’s behavior towards her during

working hours. The Rule 56 record indicates that Williams addressed Plaintiff as “cutie” or “sexy”

and “rubbed [her] butt” at work once or twice. (Id. at 83). Plaintiff stated that she was not offended,

but simply smiled in response. (Id.). In fact, in January 2015, she signed a Training

Acknowledgement Form formally acknowledging that she had not suffered or was aware of any

conduct at her work station “that would constitute sexual or gender harassment” under the City’s

policies. (Doc. # 16-4). Plaintiff further admits that she never complained to the City of any sexual

harassment. (Doc. # 22-1 at 89).

At no point during their relationship did Plaintiff communicate to Williams that his

advances and sexual encounters were unwelcome. (Id. at 74, 88-89). Indeed, Plaintiff testified that

she and Williams engaged in two more sexual encounters after she resigned, but she ended the

sexual relationship towards the end of April 2016—one month after her resignation. (Id. at 73-74).

Plaintiff counters that although her participation in the relationship was voluntary,

Williams’s advances “were not welcome because she did not solicit most of the actions and felt

pressured in order to keep her job.” (Doc. # 22 at 13). Specifically, Plaintiff testified that while

Williams never directly threatened that there would be consequences if she refused his advances,

she felt indirectly threated because Williams implied that he had control over her job by saying

“how you got to where you got. It’s because of me. I’m the one that helped you [get] there…And

everything I say do, that’s what you do, and don’t pay them any attention.” (Doc. # 22-1 at 90-91).

Essentially, Plaintiff argues that her two-year relationship with her superior was not welcome

because she had seen the consequences of Williams’s influence in the workplace—namely, his

ability to write-up and suspend other employees.

However, this argument misunderstands the crux of the welcomeness inquiry, which

focuses on (1) whether the employee “regarded the conduct as undesirable or offensive” and (2)

whether the employee’s conduct “indicated that the sexual advances were unwelcome.” Henson,

682 F.2d at 903; Meritor, 477 U.S. at 68. Plaintiff’s own testimony demonstrates that she

welcomed a relationship with Williams. In her deposition, Plaintiff repeatedly testified that she

was not offended by Williams calling her cute or sexy in the workplace. (Doc. # 22-1 at 83).

Likewise, her undisputed conduct over the course of the two-year relationship forecloses her

argument that she perceived Williams’s advances as unwelcome. Again, Plaintiff told Williams

and a co-worker that she was in love with him (Id. at 65); she gave Williams a key to her apartment

so that he could access her bedroom without waking her up (Id. at 72); she planned and paid for

an out-of-town anniversary trip (Id. at 63-65); she responded affectionately to Williams giving her

the pet name, Mush Cake (Id. at 67); and she continued the sexual relationship with him even after

she resigned her employment (Id. at 73-74). Plaintiff never refused any of Williams’s sexual

advances, and even initiated several sexual encounters herself. (Id. at 74, 88-89). Finally, although

she was given at least three opportunities to report any unwelcome sexual harassment, she never

complained about Williams and went so far as to deny the relationship each time to protect herself

and Williams. (Id. at 17-18, 98, 107-109, 152-53). Plaintiff’s own conduct belies her argument

that she felt pressured to continue a two-year relationship with a man she admittedly loved. Indeed,

Plaintiff’s ex post facto characterization of the facts does not change the undisputed facts in the

Rule 56 record. Based on the record before the court, no reasonable jury could find that Plaintiff’s

conduct indicated that her relationship with Williams was unwelcome. Consequently, Plaintiff has

failed to establish a prima facie case of a sexually hostile working environment because she has

not shown that Williams’s conduct was unwelcome.

iii. Faragher-Ellerth Affirmative Defense

Even if a reasonable jury could find that Plaintiff perceived her two-year relationship with

Williams as unwelcome (and, to be clear, a reasonable jury could not), the City is still entitled to

prevail on its Motion based on its Faragher-Ellerth affirmative defense. In the absence of a

tangible employment action, “[a]n employer avoids liability under this defense if: (1) it ‘exercised

reasonable care to prevent and correct promptly any sexually harassing behavior’; and (2) the

employee ‘unreasonably failed to take advantage of any preventative or corrective opportunities

[it] provided.’” Nurse “BE”, 490 F.3d at 1308–1309 (quoting Faragher, 524 U.S. at 807; Ellerth,

524 U.S. at 765). The City “bears the burden of establishing both of these elements.” Nurse “BE”,

490 F.3d at 1309.

1. The Rule 56 evidence is undisputed and shows that the City took

reasonable care to prevent and correct the sexually harassing

behavior.

The first prong of the defense involves two separate showings—that the employer took

reasonable care to prevent harassment and then took reasonable care to correct the harassment

once identified. Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1313 (11th Cir. 2001).

Although the parties have conflated these two elements in their briefing, the court analyzes each

part separately and finds that the City satisfies its burden on the first prong of the Faragher-Ellerth

affirmative defense.

An employer demonstrates that it took reasonable care to prevent harassment by showing

its sexual harassment policies were “effectively published, that [they] contained reasonable

complaint procedures, and that [they] contained no other fatal defect.” Id. at 1314. The City

disseminated and effectively published its Sexual and Gender Harassment Policy, and Plaintiff

received the Policy during her new employee orientation in 2013 and participated in additional

training on the Policy in January 2015. (Docs. # 22-1 at 86-87; 16-3; 16-6 at 29-30). She also

signed three acknowledgement forms over the course of her employment with the City, each time

certifying that (1) she understood how to report sexual harassment and (2) she had not suffered or

was aware of any conduct at her work station that would constitute sexual harassment.” (Docs. #

16-3; 16-4).8 The City’s Policy also contains reasonable complaint procedures because it “defines

8 Specifically, Plaintiff signed the Sexual and Gender Harassment Policy Acknowledgment Form twice on

December 12, 2013 and January 27, 2015. (Docs. # 16-3; 16-4). The form certifies that she received the Policy and

understood the following:

If I feel I am being harassed, I have a right and responsibility to communicate this

directly to the alleged harasser, my supervisor, department head, a non-involved

supervisor, the City’s Personnel Office and/or seek resolution through the

grievance and complaint procedures of the Rules and Regulations of the Jefferson

County Personnel Board.

(Id.). Also on January 27, 2015, she checked “no” in response to both of the following two questions:

Please state whether conduct has been directed toward you that would constitute

sexual or gender harassment under the City of Birmingham’s Sexual and Gender

Harassment Policy within six months of the date of this certification.

Please state whether you are aware of any conduct in your work station that would

constitute sexual or gender harassment under the City of Birmingham’s Sexual

and Gender Harassment Policy within six months of the date of this certification.

(Doc. # 16-4).

sexual harassment, prohibits it, and also instructs employees to promptly report sexual harassment

to [their supervisor, department head, or the Human Resources Department].” (Doc. # 16-8).

Williams, 286 F. Supp. 3d at 1307. Plaintiff attempts to argue that the Policy’s complaint

procedures are unreasonable because it encourages employees to first approach the harasser and

communicate that his or her conduct is offensive. (Doc. # 22 at 18). But, Plaintiff ignores the fact

that the Policy lays out several alternative mechanisms for reporting potential harassment that do

not involve dealing with the situation individually. (Doc. # 16-8 at 3-4). These alternative

procedures include reporting the conduct to a department head or the Human Resources

Department or utilizing the complaint procedures of the Rules and Regulations of the Jefferson

County Personnel Board. (Id.). See Walton v. Johnson & Johnson Servs., 347 F.3d 1272, 1287

(11th Cir. 2003) (finding that the employer’s policy was not defective when it “provide[d] an

alternative channel for making complaints other than the harassing supervisor”).

As to the second element -- requiring employers to take reasonable care to correct sexually

harassing behavior -- the court is mindful that Plaintiff did not present any complaint to the City

about any alleged harassment. (Doc. # 22-1 at 89, 180-81). Thus, the City never received formal

notice of the harassment and never launched an investigation into the harassment. (Doc. # 16-6 at

28). Nevertheless, Fancher -- operating only on rumors and co-worker concerns -- repeatedly

questioned Plaintiff about the existence of a sexual relationship with Williams. (Doc. # 22-1 at 17-

18, 98, 107-109, 152-54). Twice, Fancher directly asked Plaintiff whether she was having a

relationship with Williams. (Id. at 18, 153-54). Each time, she replied no. (Id. at 18). Even though

both Plaintiff and Williams denied the existence of the relationship, Fancher still instructed them

(both together and separately) not to communicate with each other. (Id. at 17).

The Eleventh Circuit has held that “warnings and counseling of the harasser are enough

where the allegations [of sexual harassment] are substantiated.” Baldwin v. Blue Cross/Blue Shield

of Alabama, 480 F.3d 1287, 1305 (11th Cir. 2007) (citing Fleming v. Boeing Co., 120 F.3d 242,

246-47 (11th Cir. 1999)). “Because warning the harasser and counseling him ordinarily is enough

[even] where the employer is able to substantiate the allegations, it certainly follows that the same

remedy is enough where it is not able to do so.” Baldwin, 480 F.3d at 1306. Here, Fancher asked

both Plaintiff and Williams about their relationship and instructed them to stop communicating

several times. Plaintiff cannot fault the City for not stopping a relationship which she repeatedly

denied and covered up. (Doc. # 22 at 17-18). The City was not unreasonable in accepting Plaintiff’s

denials of the relationship and declining to pursue any additional monitoring remedies. Yet, the

record reflects that Fancher continued to monitor Williams and Plaintiff to some degree because

he had additional talks with them about the impropriety of any relationship that might be taking

place. (Doc. # 22-1 at 17-18, 152-54). Accordingly, the City has satisfied its burden under the first

element of the Faragher-Ellerth affirmative defense because it took reasonable care to prevent and

correct the alleged harassment.

2. Plaintiff unreasonably failed to take advantage of the

preventative and corrective opportunities the City provided.

To establish the second element of the affirmative defense, an employer must show that

the employee “unreasonably failed to take advantage of any preventative or corrective

opportunities provided by the employer or to avoid harm otherwise.” Faragher, 524 U.S. at 807;

Ellerth, 524 U.S. at 765. Under the Faragher and Ellerth decisions, an employee’s failure to use

“the procedures in place to promptly report any harassment” satisfies the second element of the

defense. Baldwin, 480 F.3d at 1306. Thus, “an employer must show not only that it fulfilled its

responsibility, but also that the employee failed to fulfill hers.” Id. at 1292.

Despite her knowledge of the City’s various and alternative reporting mechanisms,

Plaintiff unreasonably failed to report any alleged sexual harassment. As discussed above, Plaintiff

had multiple opportunities to review the City’s Sexual and Gender Harassment Policy. (Docs. #

22-1 at 86-87; 16-3; 16-6 at 29-30). On December 12, 2013 and again on January 27, 2015,

Plaintiff signed the City’s Sexual and Gender Harassment Policy and Acknowledgment form,

which states:

If I feel I am being harassed, I have a right and responsibility to communicate this

directly to the alleged harasser, my supervisor, department head, a non-involved

supervisor, the City’s Personnel Office and/or seek resolution through the

grievance and complaint procedures of the Rules and Regulations of the Jefferson

County Personnel Board.

(Docs. # 16-3; 16-4). Plaintiff also underwent mandatory training where she and Department

Directors and Deputy Directors participated in exercises explaining how to report instances of

sexual harassment. (Docs. # 16-6 at 29-30; 22-1 at 93-96). Regardless of this knowledge and

training, Plaintiff concedes that she never used any of the City’s available procedures to report the

alleged harassment. (Doc. # 22-1 at 180-81).

Plaintiff’s attempts to justify her failure to report the alleged harassment because she felt

indirectly threatened by Williams’s influence over her career fall flat. (Doc. # 22 at 18).

“[S]ubjective fears of reprisal, standing alone, do not excuse an employee’s failure to report a

supervisor’s harassment in accordance with the employer’s policy.” Arnold v. Tuskegee Univ., 212

Fed. Appx. 803, 810 (11th Cir. 2006). Plaintiff’s fear of retaliation essentially derives from her

witnessing Williams exercise his authority as a Deputy Director. Without more, this assertion is

insufficient to overcome her failure to report the harassment. Therefore, the court concludes that

the City has satisfied the second element of its affirmative defense.

Even if Plaintiff was subjected to an actionable hostile environment (which, to be clear, the

Rule 56 evidence clearly shows she was not), the City has successfully shown that, based upon the

undisputed evidence, it is entitled to prevail on its Faragher-Ellerth affirmative defense.

Therefore, the City is entitled to summary judgment on Plaintiff’s Title VII sexual harassment

claim for this additional reason.

B. The City is Due Summary Judgment on Plaintiff’s Title VII Retaliation Claim

To establish a prima facie case of retaliation under Title VII, “a plaintiff must prove the

following elements: (1) she participated in an activity protected by Title VII; (2) she suffered an

adverse employment action; and (3) there is a causal connection between the participation in the

protected activity and the adverse employment action.” Gupta v. Fla. Bd. of Regents, 212 F.3d

571, 587 (11th Cir. 2000). (Doc. # 30 at ¶ 43).

Plaintiff avers that she was constructively terminated in retaliation for advising a co-worker

to take her nepotism complaint to the EEOC. (Doc. # 22-1 at 22-28). Specifically, her co-worker’s

complaint involved “not being hired with the City and that the other supervisor had got her

daughters on. And she knew that the daughters were not being hired, and Ms. Fatuma felt that that

caused a problem as far as her being discriminated against.”9 (Doc. # 22-1 at 23). The City argues

that it should be granted summary judgment because (1) reporting nepotism is not a protected

activity under Title VII and (2) in any event, Plaintiff did not suffer an adverse employment action

because she resigned her employment. (Doc. # 16 at 28-30). Because Plaintiff has failed to

establish that she engaged in any statutorily protected activity under Title VII or suffered an

adverse employment action, the City is entitled to summary judgment on Plaintiff’s retaliation

claim.

9 Again, although the court is unsure as to what Robinson specifically complained of, the court understands

that her complaint involved nepotism. Regardless, the factual details of her complaint are immaterial to this court’s

analysis. As explained more thoroughly below, nepotism is not an unlawful employment practice under Title VII.

Even if it was, the Rule 56 record does not demonstrate that Plaintiff engaged in any statutorily protected activity or

suffered any adverse employment action as a result of any such activity.

i. Statutorily Protected Activity

The retaliation provision of Title VII is divided into two clauses. The opposition clause

provides that “an employer may not retaliate against an employee because the employee ‘has

opposed any practice made an unlawful employment practice by this subchapter.’” E.E.O.C. v.

Total System Services, Inc., 221 F.3d 1171, 1174 (11th Cir. 2000) (citing 42 U.S.C. § 2000e–3(a)).

The participation clause prevents an employer from retaliating “against an employee because the

employee ‘has made a charge, testified, assisted, or participated in any manner in an investigation,

proceeding, or hearing under this subchapter.’” Id.

Although the parties have not couched their arguments in these specific terms, the court

gathers from their briefing that (1) the City argues that the opposition clause has no application

here because reporting nepotism is not a practice made unlawful under Title VII (Doc. # 16 at 28-

30); and (2) Plaintiff claims that she engaged in protected activity under the participation clause

because she assisted a co-worker in lodging a complaint with the EEOC (Doc. # 22 at 20-21). After

careful review, the court concludes that Plaintiff’s advice to her co-worker to file her nepotism

complaint with the EEOC does not constitute protected activity under either clause.

a. The Opposition Clause

As an initial matter, the court notes that the City has overlooked a foundational issue with

respect to Plaintiff’s retaliation claim—namely, Plaintiff has not shown that she “opposed” any

practice of the City. The term “oppose” is given its normal meaning: “[t]o resist or antagonize ...;

to contend against; to confront; resist; withstand.” Crawford v. Metro. Gov't of Nashville &

Davidson Cty., Tenn., 555 U.S. 271, 276 (2009) (citing Webster’s New International Dictionary

1710 (2d ed. 1957)). “‘When an employee communicates to her employer a belief that the

employer has engaged in…a form of employment discrimination, that communication’ virtually

always ‘constitutes the employee’s opposition to the activity.’” Id. (quoting 2 EEOC Compliance

Manual §§ 8–II–B(1), (2), p. 614:0003 (Mar. 2003)). At the very least, an employee must

“communicate her belief that discrimination is occurring to the employer, and cannot rely on the

employer to infer that discrimination has occurred.” Demers v. Adams Homes of Nw. Fla., Inc.,

321 F. Appx. 847, 852 (11th Cir. 2009) (internal quotations omitted).

Here, the Rule 56 record shows that Plaintiff told Robinson, “[W]ell, do what you have to

do. You may have to go to the EEOC.” (Doc. # 22-1 at 24). Even assuming that nepotism qualifies

as an unlawful practice under the statute (and, to be clear, as explained below it does not), this

statement to her co-worker does not amount to Title VII “opposition” because (1) Plaintiff did not

express her own disagreement with the City’s actions and (2) even if she did disagree, she did not

communicate that disagreement to her employer. Also (and more to the point of the facts that make

up the substantial portion of the Rule 56 record), Plaintiff never “opposed” any alleged sexual

harassment for the purposes of her retaliation claim. Indeed, Plaintiff testified that she never

complained to the City about any policies or practices, including sexual harassment: “No, I never

talked to any employees about sexual harassment or anything…No employees came to be about

sexual harassment. I never wrote anything up. I never talked to any.” (Doc. # 22-1 at 38). On this

record, Plaintiff has not shown that she opposed any employment practice under Title VII’s

opposition clause.

Moreover, even if she could show she “opposed” nepotism, as the City correctly argues,

Plaintiff’s retaliation claim also fails because she has not shown that she opposed “a practice made

unlawful by Title VII.” Bush v. Sears Holdings Corp., 466 Fed. Appx. 781, 786 (11th Cir. 2012).

To be clear, to satisfy the opposition clause, Plaintiff “need not prove that the practice opposed

actually violated Title VII in order to recover for retaliation.” Watkins v. Fairfield Nursing &

Rehab. Ctr., LLC, 2012 WL 1566228, at *4 (N.D. Ala. Apr. 26, 2012) (citing Lipphardt v. Durango

Steakhouse of Brandon, Inc., 267 F.3d 1183, 1187 (11th Cir. 2001)). However, she must

demonstrate “a good faith, reasonable belief that the employer was engaged in unlawful

employment practices.” Id. at *5 (citing Little v. United Technologies, Carrier Transicold

Division, 103 F.3d 956, 960 (11th Cir. 1997)). Quite obviously, in determining the reasonableness

of Plaintiff’s belief, “the court must consider preexisting case law.” Id.10

Title VII provides that “[i]t shall be an unlawful employment practice for an employer …

to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any

individual with respect to his compensation, terms, conditions, or privileges of employment,

because of such individual's race, color, religion, sex, or national origin….” 42 U.S.C. § 2000e-

2(a)(1). Noticeably absent from this list is the lawful practice of nepotism. Even if she believed

the City was engaged in nepotism, Plaintiff could not have held a reasonable belief that such a

practice violated Title VII because nepotism is not grounded in race, color, religion, sex, or

national origin. In fact, favoritism of this sort, while perhaps unfair, is gender and color neutral

and not indicative of any discrimination. See Watkins, 2012 WL 1566228, at *5-8 (noting the long

line of Eleventh Circuit precedent holding that favoritism of even a paramour is gender neutral and

more similar to nepotism, rather than sexism). Thus, even if she had opposed the City’s alleged

practice of nepotism, Plaintiff cannot demonstrate a reasonable belief that nepotism was an

unlawful employment practice.

b. The Participation Clause

The participation clause covers participation in “proceedings and activities which occur in

10 Again, the parties have not briefed this issue in accordance with the above-referenced caselaw.

Nevertheless, out of an abundance of caution, the court analyzes whether Plaintiff held a reasonable belief that the

City was engaged in an unlawful employment practice.

conjunction with or after the filing of a formal charge with the EEOC; it does not include

participating in an employer’s internal, in-house investigation, conducted apart from a formal

charge with the EEOC.” Total System Services, 221 F.3d at 1174. Here, Plaintiff’s participation in

Robinson’s nepotism complaint ended with her advising Robinson to first talk with Fancher, then

contact the EEOC. (Doc. # 22-1 at 22-24). There is no evidence in the Rule 56 record that Plaintiff

either helped Robinson file an EEOC charge or further assisted in any resulting EEOC

investigation relating to her nepotism complaint. According to Plaintiff’s own testimony, “Nobody

called me from EEOC that Ms. Robinson made.” (Id. at 22). Plaintiff’s conduct therefore is

categorically not protected by the participation clause.

Because the court concludes that Plaintiff did not engage in any statutorily protected

activity under Title VII’s retaliation provision, she has failed to establish a prima facie case of

retaliation.

ii. Adverse Employment Action

The City is also entitled to summary judgment on Plaintiff’s retaliation claim because she

has not established that she suffered an adverse employment action, much less an adverse

employment action which was causally related to any protected conduct. In her Amended

Complaint, Plaintiff alleges that she was “constructively terminated and not rehired into her

previous position or any position in retaliation for engaging in a protected activity under Title VII.”

(Doc. # 30 at ¶ 43). However, the parties have failed to recognize in their briefing the standard for

establishing the second element of a Title VII retaliation claim. In Kurtts v. Chiropractic Strategies

Group., Inc., the Eleventh Circuit noted that the meaning of a Title VII adverse action is much

broader in the retaliation context than in the discrimination context:

We begin by noting that the parties have assumed that the definition of an adverse

employment action under the anti-retaliation provision of Title VII, 42 U.S.C. §

2000e–3(a), is the same as that for an adverse employment action under the anti-

discrimination, or substantive, provision of the statute, § 2000e–2(a). The Supreme

Court rejected this view in Burlington Northern & Santa Fe Railway Co. v. White,

548 U.S. 53, 64, 126 S.Ct. 2405, 2412-13, 165 L.Ed.2d 345 (2006), and we have

recognized that our prior precedent was abrogated by this decision. See Crawford

v. Carroll, 529 F.3d 961, 973-74 (11th Cir. 2008).

The Supreme Court clarified that “Title VII's substantive provision and its

antiretaliation provision are not coterminous.” Burlington, 548 U.S. at 67, 126 S.Ct.

at 2414. To establish a prima facie case of retaliation, a plaintiff is not required to

show “an ultimate employment decision or substantial employment action.”

Crawford, 529 F.3d at 974. It is therefore unnecessary to decide whether a

reasonable jury could find that Kurtts was constructively discharged.

The key question is whether the employer's conduct “might have dissuaded a

reasonable worker from making or supporting a charge of discrimination.” Id.

(quoting Burlington, 548 U.S. at 68, 126 S.Ct. at 2415).

Daugherty v. Warehouse Home Furnishings Distributors, Inc., 951 F. Supp. 2d 1275, 1278 (N.D.

Ala. 2013) (quoting Kurtts, 481 Fed. Appx. 462, 467 (11th Cir. 2012)).

Nevertheless, even under this more flexible standard, Plaintiff has failed to carry her

burden. Again, on March 16, 2016, Fancher called Plaintiff into his office to discuss reports he

had received that she was advising other employees to take their sexual harassment complaints

directly to the EEOC. (Doc. # 22-1 at 25-27, 155-57; Doc. # 16-7). During this conversation,

Fancher read the City’s Gender and Sexual Harassment Policy to Plaintiff and emphasized the

importance of using the City’s internal reporting mechanisms to investigate potential harassment.

(Id.). He told Plaintiff that as a supervisor, it was her job to make certain these policies were upheld.

(Id.). Moreover, Plaintiff “did not take it [that her] job was in jeopardy” when she left the meeting,

and the City took no action to either discipline or terminate her. (Id. at 31, 38). No reasonable jury

could find that Fancher’s reaction would dissuade a reasonable worker from making or supporting

a charge of discrimination, particularly since the City took no action to either discipline or

terminate Plaintiff. If anything, Fancher reinforced the importance of reporting incidents of sexual

harassment and the City’s willingness to handle such complaints internally, promptly, and

effectively.

Accordingly, the City is entitled to summary judgment on Plaintiff’s Title VII retaliation

claim because she has failed to demonstrate that she engaged in any protected activity or suffered

an adverse employment action.11

C. Plaintiff’s State Law Claims

Plaintiff also asserts two state law claims against Defendants: invasion of privacy (Doc. #

30 at ¶¶ 33-36) and negligent hiring/training/supervision/retention (Id. at ¶¶ 37-41). However,

because Defendants are entitled to summary judgment on all of Plaintiff’s federal claims raised

under Title VII, the court has the discretion to either exercise supplemental jurisdiction over

11 Although not necessary to its holding, the court briefly addresses Defendants’ final argument that all of

Plaintiff’s claims are due to be dismissed pursuant to the doctrine of judicial estoppel. (Docs. # 16 at 35-38; 17 at 23-

26). Specifically, Defendants argue that Plaintiff violated her continuing duty to disclose her potential lawsuit to the

bankruptcy court during her bankruptcy proceedings. (Id.). See 11 U.S.C. §§ 521(1), 541(a)(7). Judicial estoppel

precludes “a party from assuming a position in a legal proceeding inconsistent with one previously asserted.” See

Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1286 (11th Cir. 2012). “[A] district court may apply judicial estoppel

when a two-part test is satisfied: the plaintiff (1) took a position under oath in the bankruptcy proceeding that was

inconsistent with the plaintiff's pursuit of the civil lawsuit and (2) intended to make a mockery of the judicial system.”

Slater v. United States Steel Corporation, 871 F.3d 1174, 1180 (11th Cir. 2017). However, judicial estoppel should

not be applied “when the inconsistent positions were the result of ‘inadvertence[ ] or mistake’ because judicial estoppel

‘looks towards cold manipulation and not an unthinking or confused blunder.’” Id. at 1181 (quoting Johnson Serv.

Co. v. Transamerica Ins. Co., 485 F.2d 164, 175 (5th Cir. 1973)).

Here, Plaintiff filed her voluntary petition for Chapter 13 bankruptcy on March 11, 2015, but she did not

disclose her potential employment claims (even though some of the underlying events occurred in 2014). (Doc. # 16-

10 at 2-45). Plaintiff amended her petition on April 10, 2015, but again, she did not include her potential civil claims.

(Id. at 46-52). Plaintiff’s bankruptcy case was still pending when she submitted her EEOC charge on July 5, 2016.

(Doc. # 22-8). The charge alleged that she was subjected to a hostile work environment from 2014 until she was

constructively terminated on March 18, 2016. (Doc. # 22-8). After Plaintiff defaulted, the bankruptcy court dismissed

Plaintiff’s bankruptcy case on June 15, 2017. (Doc. # 16-10 at 53-54). Plaintiff then filed the instant civil suit on July

11, 2017. (Doc. # 1).

The timeline of Plaintiff’s bankruptcy and civil cases presents an interesting question. To be sure, Plaintiff

has provided no justification for why she twice failed to notify the bankruptcy court of her potential civil suit.

However, because Plaintiff’s bankruptcy case resulted in a dismissal prior to the initiation of this action, the court

concludes that she received no benefit from her failure to disclose. See Spann v. DynCorp Tech. Servs., LLC, 403 F.

Supp. 2d 1082, 1087 (M.D. Ala. 2005). Indeed, Plaintiff’s creditors may still pursue their claims against her. With no

benefit to be gained in the form of a discharge of her debts, Plaintiff had no motive to conceal her potential lawsuit,

and thus no intent to make a mockery of the judicial system. Id. Because it cannot be said that Plaintiff intentionally

manipulated the courts to gain an advantage through her inconsistent positions, the court declines to apply judicial

estoppel as an additional reason to dismiss her claims.

Plaintiff's state law claims or dismiss them. Under 28 U.S.C. § 1367(c)(3), “[a] district court may

decline to exercise supplemental jurisdiction over a [state law] claim...if...the district court has

dismissed all claims over which it has original jurisdiction.” In that event, a plaintiff may have the

option to refile those claims in state court, as appropriate. Although the court recognizes that there

may be meritorious arguments weighing in favor of dismissal of Plaintiffs state law claims, the

court nevertheless finds it appropriate to decline jurisdiction to respect principles of federalism.

To be sure, the Eleventh Circuit has “encouraged district courts to dismiss any remaining state

claims when...the federal claims have been dismissed prior to trial.” Raney v. Allstate Ins. Co.,

370 F.3d 1086, 1089 (11th Cir.2004). In light of this precedent, the court declines to exercise

supplemental jurisdiction over Plaintiff's remaining state law claims. Accordingly, these claims

are due to be dismissed without prejudice.

IV. Conclusion

For the reasons explained above, Defendants’ Motions for Summary Judgment (Docs. #

16, 17) are due to be granted. An Order consistent with this Memorandum Opinion will be entered.

DONE and ORDERED this June 25, 2019.

UNITED STATES DISTRICT JUDGE

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